Terminating offer to purchase for breach

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Terminating offer to purchase for breach

We bought a condo that was advertised with a pier. We toured the condo prior to making the offer and saw the pier. After due diligence had passed, we went out to take pics and the pier was gone. We called the realtor who called the seller and was told that the pier needed repair and they would have it back prior to closing. Then, 2 days before closing, we called the hoa for an unrelated question and the pier happened to come up in that conversation. The president of the HOA told us that the pier was removed by them because it was damaging the dock and that they would not allow the pier to be reinstalled. Obtaining a new pier would have to go through the whole permit/hoa vote process and may not get approved. He also told us that the issue with the pier had been going on for over a year and that he told the seller to disclose this to us. The seller never disclosed this and as the pier was listed as a selling feature in the advertisement – we were shocked that it would now not be a part of the condo. We asked the sellers to compensate us for the loss of the pier as the condo would not be worth what we paid without it. They refused and we have requested termination of our offer to purchase contract due to a failure to disclose a material fact. Were being told we cant have our earnest money/due diligence money back because we are 2 days before closing. This seems absurd to me because the pier was specifically listed as a feature of the condo when it was listed and was there when we toured the condo. No one ever told us if its removal after we signed the contract to purchase and we only discovered it coincidentally because we went by to take more pics after due diligence was done. Do I have a right to get my money back? The seller knowingly withheld vital information.

Asked on June 1, 2019 under Real Estate Law, North Carolina

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

Legally, you are entitled to void the sale and get your earnest money or deposit back, even two days before closing, due to fraud: that is, due to an intentional or knowing misrepresentation of a material fact (a "selling feature") made to induce you to purchase the property. The problem is, if the seller won't consent to this and insists on holding the money, you'll need to sue them for its release, since only a court can order a party to follow the law or to do something.


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