If an option fee is delivered late and the seller accepts it, has the seller effectively granted the option period?

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If an option fee is delivered late and the seller accepts it, has the seller effectively granted the option period?

I am a realtor and delivered an option check (my client) to the seller’s agent a day late. The seller’s agent accepted the check and said nothing. A few days later, we exercised our assumed option and sent cancellation notice within the time limit. Sellers agent again said nothing and returned the listing in the local MLS to “active” status. Release of earnest money form was sent to title company who then submitted it to seller. Seller waited until after the closing date of contract and then informed us he would not agree to release earnest money. Do I have any recourse?

Asked on November 16, 2010 under Real Estate Law, Texas

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Yes, I am sure that you have some recourse but I would hesitate to say what without at least reading the agreement and looking in to your state law.  The approach that you are going to have to take is to sue for the return of the money.  They are going to object stating that you did not follow the agreement (contract) and cancel in time.  You are going to take the position that even though you were one day late - which can not be denied - your alleged breach was not detrimental to the seller and that it was waived by the seller's agent by acceptance of the option without objection, re listing the property, etc., etc., etc. A judge will have to decide this.  Good luck.


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