Can a seller ask for and receive a down payment and then refuse to deliver the contract to the buyer?

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Can a seller ask for and receive a down payment and then refuse to deliver the contract to the buyer?

This is concerning an elderly man and his older sister. They moved from TX to MO in September of this year. They have done everything they have been asked to do but the seller says that because of his job, he cannot get to the contract yet. He did promise the contract the following weekend after the down payment was requested and paid, which was the last week in September, but as of this date there is still no contract. He says they will just have to wait. I feel this seller is taking advantage of this couple of elderly people and really would appreciate some advice.

Asked on November 29, 2010 under Real Estate Law, Missouri

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If there is an agreement, such as that if they provide the down payment, the seller will do a certain thing (provide a certain service or good; even provide a final contract or agreement), then the seller must do that thing if the other party honored their obligation by making the down payment. Legally, someone cannot simply unilaterally take and keep another's down payment.

As a practical matter, it may take legal action, or at least the credible threat of legal action, to enforce the man and his sister's rights. They should consult with an attorney, who can advise them on how best to proceed; it will probably involve, initially, sending a letter on the lawyer's letterhead from his office, demanding (in a professional way) performance of the seller's obligations; however, they should speak with a lawyer and get advice tailored to all the specifics of their situation.


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