[WSBARP] Earnest Money Deposit Issue

[Eric Nelsen]

I don't think an offer/ask to rescind is a breach of the PSA, so Seller isn't entitled to the EM. Seller just needs to reject the offer to rescind and inform Buyer that the Seller Estate intends to close as agreed. Unless Buyer actually says something affirmative like "I'm not going to close on this," I don't think you have anticipatory breach.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of David Faber
Sent: Tuesday, May 08, 2018 4:01 PM
To: wsbarp
Subject: [WSBARP] Earnest Money Deposit Issue

List:

I'm representing the PR of an estate for a decedent who was under contract for the sale of real property here in Jefferson County at the time of death. When Buyer (B) was informed that seller had died, B signed and transmitted a MLS form 51 Rescission Agreement attempting to beg out of the PSA and for the refund of the earnest money deposit. I was, quite frankly, surprised to see B try to rescind considering the closing date on the PSA is not until later June and there was no notification to B that the estate would be unable to close the transaction as the successor-in-interest to the decedent. PR now want to boot B out of the transaction but keep the earnest money deposit as liquidated damages under the theory that B signing the rescission agreement is sufficient to indicate that B intends to fail without cause to close the transaction. Either way, PR is quite annoyed by B for rushing to exit the PSA when their father died.

I am unable to find case law on point here and wondering if anyone has any thoughts or would be willing to discuss this issue with me?

Best,
David J. Faber
Faber Feinson PLLC
210 Polk Street, Suite 1
Port Townsend, WA 98368
(360) 379-4110
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