# DVC Force closing



## sweetdana (May 22, 2015)

A friend of mine is having cold feet on her DVC.  She would rather wait to make the final decision on buying.. 

She made a purchase agreement about 2 months ago, and passed ROFR, now her original financing feel through, and she wants to wait 30-90 days, or cancel to make sure this is right. 


She put down 2K, (on a resale contract, through one of the big companies) and I cannot find in her contract a required closing date by.    So I think, she is likely allowed to delay, but how long? 
Is there any reason she has to close right away, if it isn't in her contract. Is it in the contract with Disney?  If the seller decides to not wait for her, which is that she thinks might happen, would she still lose her deposit, if they are the ones officially pulling out.  
Any incite would be wonderful thanks!


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## taterhed (May 22, 2015)

Most have a time is of the essence clause somewhere.


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## presley (May 22, 2015)

Typically, Disney or the seller can give her a final notice to pay by so many days. If she doesn't pay in that time, she will lose her deposit and they can sell to someone else.


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## JimMIA (May 22, 2015)

First of all, I am NOT a lawyer, so keep that in mind.

Obviously NOW is not the time to carefully evaluate whether she should buy DVC; she should have done that before submitting an offer. But she's trying to salvage a bad situation.  

It's possible that she might need to speak to an attorney to get better advice than she will get here...including mine!





sweetdana said:


> She put down 2K, (on a resale contract, through one of the big companies) and I cannot find in her contract a required closing date by.    So I think, she is likely allowed to delay, but how long?


If she's dealing with one of the big companies, they are in Florida and under Florida law the rescission period is ten days from signing the purchase agreement.


> Is it in the contract with Disney?


It's a resale; Disney has nothing to do with it. 





> If the seller decides to not wait for her, which is that she thinks might happen, would she still lose her deposit, if they are the ones officially pulling out.


Generally, there IS a close-by date, and if the seller had returned their paperwork and was ready to close and your friend wasn't, yes, she would lose her deposit.  Generally, the deposit is split between the seller and broker.

If there is truly nothing about a close-by date, I would look for language that talks about forfeiture of deposit.  You may get some insight there.

Failing that, I would approach the broker and see what they say.  I would not tell them she's having second thoughts, I'd just say the financing fell through and she needs more time, so if the seller wants to put the contract back on the market, she will understand.  If the SELLER backs out, and there is no specified closing date, she may not lose her deposit -- but I would check with the broker on that.


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## sweetdana (May 22, 2015)

THank you!   Although I agree, perfect decisions made up front, and she is salvaging a bad situation, she is trying to breathe and figure it out. 

THANK YOU all for your advice I have send her this link  

There is no time is of the essence in the contract she signed, there is in the new contracts for her to finalize, however she has not signed this. Hopefully  she will  get the financing, or make the decision it isn't right either way.


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## elaine (May 22, 2015)

She needs to read the contract. If it says "subject to financing," then she should get her $ back.  If not, then she probably loses the $. There is usually a liquidated damages clause that governs what happens if the buyer backs out. It should be specifically spelled out in the contract. As a seller, I would not want to want up to 90 extra days.


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## elleny76 (May 22, 2015)

sweetdana said:


> A friend of mine is having cold feet on her DVC.  She would rather wait to make the final decision on buying..
> 
> She made a purchase agreement about 2 months ago, and passed ROFR, now her original financing feel through, and she wants to wait 30-90 days, or cancel to make sure this is right.
> 
> ...



They are delays in closing by 3 to 4 months. Be aware. Everyone who is buying resale is going through the same situation. if she needs more time than 4 months then I think it will be a problem. ( I bought mine in cash )


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## sweetdana (May 22, 2015)

elleny76 said:


> They are delays in closing by 3 to 4 months. Be aware. Everyone who is buying resale is going through the same situation. if she needs more time than 4 months then I think it will be a problem. ( I bought mine in cash )



HMM they send her the docs saying closing is to be by 5/27, I think they have the final what ever it is they wait on.   *** think. 

She went over and over it.. there is no must close by, time is of the essence clause, she is going to tell them she needs 30 days, as they changed the closing agent and this is what her lender will not work with. and see what happens.


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## JimMIA (May 23, 2015)

sweetdana said:


> HMM they send her the docs saying closing is to be by 5/27, I think they have the final what ever it is they wait on.   *** think.
> 
> She went over and over it.. there is no must close by, time is of the essence clause, she is going to tell them she needs 30 days, as they changed the closing agent and this is what her lender will not work with. and see what happens.


If, in fact, the change in closing agent caused the failure of the financing, I think she has a valid argument for an extension -- and not just for 30 days.  In that case, I would tell them it will take as long as it takes...and hope the seller bails and goes back on the market.

Why will the financing source not work with the closing agent?  Problems with the agent?  Problems with the paperwork?  That seems very unusual.


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## SMHarman (May 23, 2015)

sweetdana said:


> HMM they send her the docs saying closing is to be by 5/27, I think they have the final what ever it is they wait on.   *** think.
> 
> She went over and over it.. there is no must close by, time is of the essence clause, she is going to tell them she needs 30 days, as they changed the closing agent and this is what her lender will not work with. and see what happens.


And on 5/27 the seller has to serve legal notice and the buyer has 30 days to rectify (close)


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## JimMIA (May 24, 2015)

As I said in my first post, I'm not a lawyer...but 

I don't see how the broker, seller, closing agent, or anyone else can impose conditions like "close by" or "30 days to rectify" *if those conditions were not in the contract to begin with.  *

They can't just make stuff up as they go along!


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## Tia (May 25, 2015)

JimMIA said:


> They can't just make stuff up as they go along!



They can of course try and if people fall for it well then....


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## lawboy2001 (Aug 2, 2015)

JimMIA said:


> As I said in my first post, I'm not a lawyer...but
> 
> I don't see how the broker, seller, closing agent, or anyone else can impose conditions like "close by" or "30 days to rectify" *if those conditions were not in the contract to begin with.  *
> 
> They can't just make stuff up as they go along!



The parties to the contract must perform their obligations under the contract.  That means, in the case of a buyer, forwarding the full payment which is due under the contract.  And while I find it hard to believe there is no 'close by' date or similar language in the contract of purchase, the absence of one doesn't allow the buyer to do nothing and wait as long as they feel like to perform their contractual obligations.  Giving a buyer 30 days to ante up after all the requirements for payment have been met (estoppel cert., ROFR) is not unreasonable.


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## JimMIA (Aug 5, 2015)

lawboy2001 said:


> The parties to the contract must perform their obligations under the contract.  That means, in the case of a buyer, forwarding the full payment which is due under the contract.  And while I find it hard to believe there is no 'close by' date or similar language in the contract of purchase, the absence of one doesn't allow the buyer to do nothing and wait as long as they feel like to perform their contractual obligations.  Giving a buyer 30 days to ante up after all the requirements for payment have been met (estoppel cert., ROFR) is not unreasonable.


No, it's not at all unreasonable.  

But there are two questions here.  One is whether she would lose her deposit, and I assume she would unless the seller agrees to cancel the contract.

The other question is whether or not she can really be compelled to close if she doesn't want to close.  

Sure, the seller could sue her to force compliance with the contract.  But *in the real world*, for a small amount of money ($20,000?), it that _really_ a viable option?  First, the plaintiff would have the costs of the lawsuit itself.  And then, if they were successful, they would have the problem of forcing the buyer to actually pay up.  

Collecting a judgement, probably across state lines, would be profitable for the attorneys involved, but not for either the seller or buyer.  That's why lawyers like to play, "Let's you and him fight!"  They get paid when you fight.

Legally, you are right, of course.  But, as a practical matter, I doubt the seller would go to those lengths.  It's so much easier and cheaper to just relist the contract and sell it to someone else in a smooth transaction.


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