EMD Battle

[Shaquetta Chittams]

My husband and I put a contract on a home. During our home inspection, we found there was moisture in the basement and potentially mold based on our inspector's radar. He also noted the patch work around the foundation of the home was an indication their was moisture in the basement. He noted this prior to entering the home. This is actually what lead him to further investigate. He believed the basement needed waterproofing. After the report was sent to the selling agent (who is the seller's wife), the seller replied with his list of things he would fix. This list included additional patching around the foundation of the house. We declined and opted to release the contract. When we opted to release the contract because the patchwork was not enough, the selling agent is now attempting to keep our EMD because the inspection report was a day late although they were notified and accepted. Also, we believe this moisture in the basement was a latent defect that was not initially disclosed in the contract. We didn't learn of this until we conducted a home inspection and according to the report the levels on the moisture radar was significantly higher than where mold begins to grow. The patchwork and the increased moisture level somewhat appears that there had to be knowledge there was a moisture problem in the basement especially considering the sellers resolution was to re-patch the work he had previously done. What protects us as the consumer from shady sellers and their agents? Especially considering we would not have put a contract on the house had we known their was a moisture problem. There actions appear to be intentionally deceptive and now they are trying to take our money stating we breached the contract because the inspection report was a day late.

@Ned Carey

@Ned Carey Do you have any advice on this topic?

[Russell Brazil]

Originally posted by @Shaquetta Chittams:

@Russell Brazil 

Is there anything else we can do??? Why would the broker not aggressively attempt to get our EMD back? What is the point of disclosures if they are not required? What protects us as the buyer???

You are in default of the contract and that is why the broker is not acting aggressively to pursue the EMD. Playing nice here is likely to help better than being aggressive when you are the one in default. Maybe the broker makes empty threats or is too aggressive and instead of just potentially losing your emd you get sued by the seller for additional damages or sued to perform the contract. While that would not likely be successful you could very easily be out ten grand in lawyer fees.

What protects you as the buyer is your inspection. You had X days for an inspection, but here you took X days plus 1. It's unfortunate but the fault is on your side of the equation. If the inspection report was going to be late you should have negotiated an extension..and if unable to negotiate that then opt out of the contract. It's why we have contracts...they protect buyer and seller, but your side sadly dropped the ball. Time is of the essence is the most critical idea in a real estate contract. Timelines must be adhered to. 

You should wait patiently and let the broker attempt their process and if you are lucky you will get your emd back. I hope it wasn't a large sum.