Question:
I am representing the Seller and the Buyers conveyed through their realtor that they do not want to close. They are thinking that if the Seller sold for what he sold to them, they can get their deposit (15% of purchase price) back, as the Seller would suffer no financial loss. Since we know of this anticipatory breach, can we immediately put the property back on the market today?
Answer:
This is not an anticipatory breach, it’s close, but you are not quite there yet.
So, retain counsel and await their directions concerning the anticipatory breach. Obviously the Buyers are thinking about it, but they haven’t done it, so it’s very risky to proceed with listing and a second sale. When they actually receive legal advice, the Buyers might change their minds.
You want the Buyers to acknowledge that they will not be closing on the date of completion. That means the Sellers don’t have to wait to place the property back on the market. The advantage to the Buyers is that they will lessen the amount of damages that they ultimately have to pay.
The Seller’s lawyer will confirm that this is a true anticipatory breach before advising you to relist the property.
Brian Madigan LL.B., Broker