Vetstein Law Group: Buyer Loses $31,000 Deposit After Refusing To List Current Residence For Sale As Financing Condition

Vetstein Law Group: Buyer Loses $31,000 Deposit After Refusing To List Current Residence For Sale As Financing Condition

By Richard D. Vetstein, ESQ

Standard Mortgage Contingency Language At Issue

I recently came across a very interesting and scary case from the Appeals Court, Survillo v. McDonough No. 11-P-290. Dec. 2, 2011 [enhanced version available to subscribers]. The case underscores how carefully attorneys must craft the mortgage contingency to protect the buyer's deposit in case financing is approved with adverse conditions.

"Prevailing Rates, Terms and Conditions"

The buyers, Mr. and Mrs. Survillo, submitted the standard Offer To Purchase the sellers' home in Walpole. The offer provided it was "Not subject to the Sale of any other home." The sellers accepted the offer. The buyers received a conditional pre-approval from Leader Bank for a first mortgage in the amount of $492,000. The pre-approval also stated that anticipated loan was "[n]ot based on sale of any residence."

The parties then entered into the standard form purchase and sale agreement (P & S), with the typical mortgage contingency provision for a $429,000 mortgage loan:

"In order to help finance the acquisition of said premises, the [buyers] shall apply for a conventional bank or other institutional mortgage loan of $492,000.00 at prevailing rates, terms and conditions. If despite the [buyers] diligent efforts a commitment for such loan cannot be obtained on or before October 5, 2009, the [buyers] may terminate this agreement by written notice to the [sellers] and/or the Broker(s), as agent(s) for the [sellers], prior to the expiration of such time, whereupon any payments made under this agreement shall be forthwith refunded and all other obligations of the parties hereto shall cease and this agreement shall be void without recourse to the parties hereto "

Change In Circumstances: Lender Requires Piggyback Loan & Buyers List Their Residence

Due to the buyers' debt to income ratios, the lender required that the loan be structured as a "piggyback" - a first mortgage of $417,000 and second mortgage of $73,400, and with the condition that the buyers listing their primary residence for sale prior to the loan closing. The buyers absolutely did not want to list and seller their residence, so they wanted out of the deal.

On the last day of the extended financing deadline, the buyers timely notified the sellers that they had "not received a loan commitment with acceptable conditions," and attempted to back out of the agreement under the mortgage contingency provision. Ultimately, with the buyers refusing to sell their home, the bank denied the buyer's the mortgage application based on the fact that the "borrower would be carrying three mortgage payments and the debt to income is too high."

Focus On "Prevailing Terms" Language

The sellers refused to return the deposit, and litigation over the deposit ensued.

The Court framed the case as follows: "Before the extended mortgage contingency deadline of October 21, the buyers received a commitment from the bank for two mortgages totaling $492,000. The P & S's mortgage contingency was accordingly satisfied unless the bank's requirement that the buyers list their home for sale was not a "prevailing" term or condition."

The court started with the assumption that "the typical loan condition for most borrowers is to require them to sell an existing home before the new loan closes. The condition here required only that the buyers list, not sell, their home and it was accordingly not a typical condition." The buyers argued that because the condition was unusual, it was not a "prevailing" condition within the meaning of the contingency clause of the P & S, despite the fact that the condition was more favorable to them than the standard condition. The court flat out rejected that argument, citing prior rulings that terms of a mortgage contingency presuppose that the buyers will accept commercially reasonable loan terms. If less is required, the condition becomes an option. The court also noted that the buyers failed to notified the sellers that they were unwilling to list or sell their existing home, nor did they insert a proviso to that effect into the mortgage contingency clause. Subsequent events suggested that if the buyers had timely disclosed their intentions to the bank, the loan would have been disapproved, which may well have given the buyers the shelter they sought under the mortgage contingency clause.

The court ruled against the buyers who had to forfeit their $31,000 deposit.

An Ounce of Prevention Is Worth A Pound of Cure

I'm not sure who is to blame here, the buyer's attorney or the buyers themselves. Probably both.

From a legal drafting approach and as the court pointed out, the buyer's attorney could have insisted on language into the mortgage contingency provision that the buyers' financing could not be conditioned on the listing or sale of the buyers' present residence. After all, the language was in the Offer, so it could have easily been carried over into the P&S. There was no indication from the decision that this was raised or negotiated.

It also seems apparent that the buyers were not particularly up front with anyone on their insistence that they would not list and sell their current residence. If they had been more forthcoming about that, perhaps they could have avoided this situation.

Based on the loan amount, this mistake or gamble cost the buyers around $31,000 plus legal fees. Ouch!

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 Mr. Vetstein has represented clients in hundreds of lawsuits and disputes involving business, real estate, construction, condominium, zoning, environmental, banking and financial services, employment, and personal injury law.

In real estate matters, Mr. Vetstein handles residential and commercial transactions and closings. In land use, zoning, and licensing matters, Mr. Vetstein offers his clients an inside perspective as a former board member of the Sudbury Zoning Board of Appeals. Mr. Vetstein has an active real estate litigation practice, and was a former outside claims counsel for a national title company.

Drawing on his own business degree and experience, Mr. Vetstein assists his business clients with new business start ups, acquisitions, sales, contract, employment issues, trademarks, and succession planning. Mr. Vetstein also litigates, arbitrates and mediates a wide variety of commercial disputes.

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