Boston Real Estate Lawyer
Q.My husband and I find ourselves in an extremely sticky situation where our downpayment in the form of escrow is in jeopardy. Here are some quick facts. Would really appreciate any help/info/advice on this. We are first time home buyers. We found this property FSBO and made an offer basing on the comps. and the upgrades in the particular property. The offer was accepted and we also did the P&S. The bank appraisal came out 15K lower than the agreed upon price. THe seller refused to budge and top of that holding onto our downpayment. Naturally, the bank denied our mortagage and we want to back out. The whole situation is still in limbo. What are the chances of us getting our downpayment back considering that: 1. The seller prior to listing the property did not get it professionally appraised. Unfortunately, although, we looked at the comps, but got carried away by the upgrades..thus coming up with the offer which we found out later is 15K higher than the appraisal price. 2. We have the Mortgage Contigency clause in the P&S: What do people here think of our chances of getting the downpayment back? And chances of losing it?
A.We do indeed have a lawyer looking into this albeit a general one. He is not specifically a real estate lawyer. From our teleconversations, he did mention that we have an excellent chance of getting all or some and they(the sellers) have an argument which can prevent us from getting all. Now, I know, this is very vague. Hence my husband and I have requested to meet with him personally to understand all this better. We haven't got a date yet. All we understood from the phone convos. was that the seller's point was that, if we had put in X% as downpayment instead of Y% then the bank wouldnt have denied us the loan or if we had used some other FHB options, the bank wouldnt have denied us the loan. This surprises me a bit since isnt it upto us to determine how much we want to put in etc..so we can reduce our monthly payments and stuff? Is that argument valid at all and can they go further with that? Again, as I had mentioned earlier, we are first time home buyers trying to own property in MA. As people would know, we are talking about unrealistic prices for single family homes in Boston Suburbs. In the meantime, I wanted some info from you all based on your experiences. Hence the posting. We do have a mortgage contigency clause but not an appraisal clause. The mortgage contigency clause states that: In order to help finance the acquistion of said premises, the BUYER shall apply for a convential bank or other institutional mortgage loan of X amount a prevailing rates, terms and conditions. If despite the BUYERS diligent efforts a commitment for such loan cannot be obtained on or before the said date, the BUYER may terminate this agreement by written notice to the SELLER and/or the brokers as agents for the SELLER prior to the expiration of such time, whereupon any payments made under this agreement shall be forwith be refunded and all other obligations of the parties hereto shall cease and this agreement shall be void without recourse to the parties hereto.
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