In the Florida real estate business, a downturn in market price can result in the termination of what at first glance seemed to be the perfect deal.
Default of escrow deposit as the result of a terminated purchase agreement is a calculated risk that most sellers and buyers are still willing to take.
The potential payoffs of property investment in a state known for its thousands of miles of sought-after coastal real estate is too high to avoid.
A specific performance claim is a lawsuit filed to force another party’s obligation to escrow contract.
When a secured escrow deposit is not returned to a buyer, or a terminated purchase agreement results in detriment to a seller, a specific performance claim can be filed with the court.
Escrow Agreements and Specific Performance
Payment of funds and any request for modification of a property should not be performed before an escrow agreement is executed and all instructions and contingencies to contract are satisfied.
Escrow is complete when the transaction is finalized according to the terms and conditions of the agreement signed by all parties.
The single most common contingency during a property escrow is financing.
Lenders generally require a sales price proximate to the appraisal value.
For this reason, a buyer may be faced with the demand for a higher than expected down payment, or alternately, a seller a lower than expected selling price.
Cancellation of a purchase agreement may lead to forfeiture of part, or all, of an escrow deposit if the buyer has not been successful at obtaining adequate financing to meet the seller’s final asking price.
In such a case, the seller is not legally longer bound to contract on basis of a buyer’s inability to meet the terms to specific performance.
Enforceability of Purchase Agreement
Most U.S. states, including Florida, require that a property purchase agreement be in writing to be enforceable. Retention of e-mails and other documented communications may contribute to a substantial basis for enforcing a contract tort claim on a purchase agreement.
In Florida, a specific performance escrow litigation matter can take up to three years until it reaches trial, with appellate procedure requiring up to a year.
A plaintiff filing a specific performance claim on a terminated escrow agreement must show that they have been compliant with conditions of contract and are prepared and willing to meet the terns of specific performance themselves.
Notice of Lis Pendens
According to Florida law, lis pendens protects buyers from seller conveyance of a property to another party during escrow.
Notice of lis pendens when a specific performance lawsuit is filed is a requirement under law.
Without this provision, “no title defect would appear of record, so the seller should then be able to find a buyer without knowledge of the pending specific performance claim.” An interpleader action is often filed with the court system by the escrow agent named in an escrow litigation specific performance case to avoid extenuating liability should any illegal conveyance of the property in question occur.
Contact an Escrow Attorney
Considering property investment in Florida? Involved in an escrow transaction dispute? A licensed attorney at law will assist you in recovery of just compensation for escrow contract negligence.
FL Legal Group is a licensed Florida attorney practice specializing in escrow law and real estate transactions.
Richman, Gerald F. and Mark A. Romance, Specific Performance of Real Estate Contracts: Legal Blackmail, The Florida Bar Journal, Vol. LXXII, No. 10, November 1998 (last visited June 2018), https://www.floridabar.org/news/tfb-journal/?durl=%2Fdivcom%2Fjn%2Fjnjournal01.nsf%2FAuthor%2FDD80EFF3FC9685A685256ADB005D6217
Schneider and Onofry, Battles Over Real Estate Deposits, FindLaw (last visited June 9, 2018), https://corporate.findlaw.com/litigation-disputes/battles-over-real-estate-escrow-deposits.html