Escrow escape? Do sellers have a way out of contract?Selling a house or home is usually very challenging and emotional, even under the best of circumstances.  It’s all the worse if the folks on the other side of the transaction – the buyers, their real estate agent or both – are difficult, rude, hot headed, verbally bullying, not performing on time or otherwise making the escrow and sale more upsetting than is necessary.  What can a seller or listing agent do about it? Can the seller cancel the contract and boot the bad guys out?

If there is a seller contingency, it may not be hard to do this at all. (For example: home sale subject to seller finding replacement property – they can just not look!) But that’s rare. Most of the time, only the home buyer has contingencies.

In Silicon Valley, we have 2 different contracts in use – the CAR and PRDS.  Before we can answer the question of how to get rid of nasty buyers or agents, it’s important to know and understand the contractual agreement clearly.  So the first question is “what does the contract say?”  Often the sellers don’t have an easy way to boot obnoxious agents out of contract.  But it may be possible to catch the buyers in a default (that is, not performing) via some subtlety in the contract and that may eventually enable the sellers to cancel the contract.

Both of the purchase agreements used in Santa Clara, San Mateo and nearby counties include a list of rights and responsibilities for both sellers and buyers.  They also include time frames: buyers and sellers must do these certain things within a specified number of days (some are boilerplate and others are written in and variable). So these contractual “technicalities” may be time frames which have been ignored inadvertently.

It’s no slam dunk most of the time, though, to get rid of buyers and their real estate representatives.  Usually it will be necessary to put the other side on notice that they are out of contract and to give them a chance to get back on track.  This official notice that they are at risk of having the sale cancelled is called a “notice to perform“.

At what point can you give a “notice to perform”?  There’s a little debate about this, so before electing to send over that kind of missive it might be good to have your agent check in with his or her manager or broker.  Some agents and sellers, if feeling harassed, may issue one before a deadline is even missed by the other side.  Normally this is taken as hostile – it is – and can seriously worsen the relationship between buyers and sellers without having any practical or helpful impact on the problems. In other words, it’s a bit like waving the red cape.

It’s not fair, having to deal with rude, nasty people who say untrue things, who bully others and seem to be just emotionally playing with the folks on the other side of the transaction.  I know.  Sometimes there’s not much you can do about it in the immediate sense.  But nastiness finds its own punishment, eventually – even if you never see it.

Rude, nasty agents (and agents who encourage or allow their buyers to be that way) risk every future transaction in the area since their colleagues will talk about them – a lot!  There are a few Realtor bullies in the Saratoga and Los Gatos market areas, but who they are is no secret to other real estate professionals in the area.  Agent reputation is so important! When there are multiple offers, the loathed agent and his or her clients will be at a huge disadvantage. So too with some homes that don’t sell – it can be that the agent community is literally boycotting a jerk. In the long run, it doesn’t pay to be obnoxious.  Call it karma, but other agents remember the guy who took advantage of a typo for personal gain, who showed the love of bullying at every turn or who controls to the point of choking out everything and everyone.  So too on the other end of the spectrum – a well liked agent who “plays fair”, communicates and performs without drama or game playing will find doors open that might otherwise be closed.

This is also true of everyone else we deal with too – title companies, inspectors, repair people.  A bad turn will be told to the entire agent community, but so will a good turn or going the extra mile. Reputation eventually is its own reward or punishment.

Got a nasty situation on your hands? One of the best things you can do is to keep a calm head. As a seller, you can say no to unreasonable demands.  If the buyers shoot you an addendum, even if it is reasonable but you want them to back out of the sale, you can say no. You are not obligated to do more than make the home available for inspections, provide your disclosures in a timely manner, keep the house and property up and any other contractual requirements.

Sometimes the listing agent is so frustrated at the inability to protect sellers from rude buyers’ agents or buyers that he or she gets emotional too. This doesn’t help.  If you’re angry or upset, don’t leave a voice mail or shoot over a snarky email.  Let yourself calm down first.  If the other agent is doing it to get a reaction out of you, don’t give him or her the pleasure.  Let calm heads prevail.





  • Mary Pope-Handy

    Silicon Valley Realtor, selling homes in Los Gatos, Saratoga, San Jose, Silicon Valley, and nearby since 1993. Prolific blogger with a network of sites.

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