What Happens When You Back Out Of A Conditional Deal In Bad Faith?

Stories!

10 minute read

September 13, 2023

Did I ever tell the story about how a colleague of mine, in her first year of real estate, sold a house to a homeless person?

Er, sorry, I meant unhoused.

I guess I’m a little behind on my regular updates on changes to the English language by first-year university students with nothing better to do…

Yes, my colleague sold a house to a homeless woman who was simply meeting with my colleague and looking at houses every week in order to get a free Tim Horton’s coffee and muffin.

I’m sure I’ve told that story here on TRB.  It’s way too good to have kept a secret.

But today, I’m going to tell a story that I don’t believe I have before.

Forgive me for not remembering, but it’s been 16 1/2 years of blogging and occasionally, I don’t know if I’ve shared a particular tale…

I’ve experienced a lot in this business over the last two decades, and from time to time, I’ll remember a particular interaction or experience and think, “Why haven’t I told that story on Toronto Realty Blog?”

I love when that happens.

Believe it or not, I don’t have a never-ending bucket of topics for the blog.  I mean, well, I guess I do, since I still write new content Mon/Wed/Fri, but sometimes I really have to scrounge to find something to write about.

So when I’m driving in my car on a Monday afternoon and maybe I see something, or hear something, or feel something that triggers a memory of a wild experience from yester-year, I immediately stop what I’m doing and send myself an email:

BLOG TOPIC: Bram & Mary crazy house story

Otherwise, I’ll forget.

And when I’ve got a great topic or story for the blog, I do not want to forget.

The long-term memory is sharp, folks.  But the short-term memory leaves me coming home empty-handed fifteen minutes after my wife calls, texts, and emails to ask me to bring home butter…

I also can’t honestly remember how I met the protagonists in this story, and that’s got nothing to do with memory.

Perhaps I was working an open house and they just randomly walked in?

I don’t do weekend open houses anymore, but back in the day, I did them every weekend.  It’s a great way to meet potential buyers and it’s also a great way to see what the general public thinks of a property, or the real estate market, or the pillows on the couch.

Trust me – you haven’t seen anything until you witness the indifference and indignity that a random passer-byer will offer you when they walk into your open house and explain how much they hate real estate, or real estate agents, or real estate prices, or you.  Yeah, you, the person that they don’t know, have never met, but dislike from the moment they see your “OPEN HOUSE” sign on the sidewalk and decide to come in and tell you what they think.

Ah yes, sometimes I miss those days!  Open houses are such an incredible look at the human psyche.

So let’s say that I met “Bram” and “Mary” at an open house in Leaside, circa 2008.

We struck up an immediate rapport as I told them that I grew up in Leaside and knew the area like the back of my hand, and they explained that they were living in a small, semi-detached house in the Beaches Triangle, and that they needed more space.  They didn’t know much about Leaside at that time and they had honestly just been driving around looking at neighbourhoods, and happened to wander in to the open house.

was biased toward Leaside, but everything they told me lined up with a potential move to the neighbourhood and they really seemed to like the streetscapes, housing styles, and the general vibe.

We started working together in early-2008 and they had a very healthy budget.  It was more than enough to obtain what they wanted, which was essentially a detached house with at least four bedrooms, and beyond that, they weren’t fussed.

They seemed to be of really simple needs and weren’t concerned with the quality of finishes in a house, but they also didn’t demand things like a master ensuite bathroom, which most people in this price point, coming from a smaller semi-detached house without a master ensuite, would want.

Bram and Mary were likely in their early-40’s and they had two children that were probably eight and ten.

The kids came with us on most viewings Bram and Mary would ask the kids their opinions, which was cute, considering they were children!

Bram and Mary were very quiet and often hard to read.  They weren’t that expressive and typically walked through the house making very few comments, good or bad.

They were just reserved, that’s all.  Nothing odd about it, or them.  At least, not yet…

Eventually, the family was really smitten with this North Leaside house that was on a large lot and had a swimming pool.

We saw the house a second time and Bram and Mary started to ask questions about the offer process.

I walked them through the home inspection and we analyzed it and satisfied ourselves.

I explained that they would need a deposit cheque to accompany the offer.

I outlined how an “offer date” worked, and we did our research on comparable houses to determine a reasonable value for the home.

Even back in 2008, most houses had “offer dates,” and despite home prices being a lot lower back then, the process was quite similar to what we have today.

As it is today, back then, sellers provided pre-home inspections, so I explained to Bram and Mary that every buyer submitting an offer on “offer night” would have satisfied themselves of financing, inspection, and anything else that could otherwise result in making a conditional offer.

I then explained the risk/reward proposition for the seller with respect to conditional/unconditional offers, and why they had virtually no chance of being successful with a conditional offer.

Bram and Mary told me that they wanted to proceed with an offer, and they went and got a bank draft for the deposit.

An hour before offers were due, I set up a call with Bram and Mary to discuss the terms of the offer.

Our price was great and we had a deposit in hand, but I wasn’t counting on Mary saying, “We want to make our offer conditional on a home inspection.”

I was floored.

We had been over this.

Not only that, there were seven offers on the table!

They were reasonable and intelligent people and I explained, “We have a zero percent chance of ‘winning’ against seven other offers with a conditional offer.”

But Bram and Mary wouldn’t budge.

I felt like this was a pointless exercise but we went ahead and submitted.

The property was listed for $879,900 and we offered $1,040,000, which seems like peanuts compared to prices today, but keep in mind, this was back in 2008.

The listing agent was a relic.  He had been in the business for about a hundred years or so, but he was so nice and so courteous.  Ultimately, I think that worked against him…

He called me and said, “David, I have seven offers in hand and only one is conditional.  It’s yours.”

I told him that I knew that would be the case and that I tried to get my clients to make an unconditional offer, but it was to no avail.  I was going to say, “I realize we have zero chance here and I’m wasting my time, but he got out ahead of me and started talking.”

“David, we’re really struggling with this,” he said, and all of a sudden my ears perked up.

“We’re trying to figure out what to do,” he said, and I wondered why.  He had six unconditional offers.  He wasn’t actually considering accepting our conditional offer, was he?

“Look, I’ll be transparent,” he explained.  “You have the highest price.  But you’re conditional.  We’re just trying to figure out what our risk profile is here.”

Wow.

I was shocked.

First of all, why wouldn’t he simply go back to the agents representing the second-highest and third-highest offers and ask them to improve?

Second of all, was he really going to accept a conditional offer?

Our offer was conditional for five business days, by the way.  That’s an eternity!  And more importantly, our offer was conditional on a home inspection, but the listing agent had provided a pre-home inspection at the house.  Wasn’t this a red flag to him?

Then came the kicker, as the listing agent said, “By the way, the sellers remember you.”

Huh?  They remember me how?

“She was a librarian at your elementary school,” he said.  “And one of her sons was a Beaver and your mom was the beaver leader!”

It’s true.  My mom was the Beaver leader for five years in the late 1980’s and early 1990’s over at the Leaside United Church at Millwood & McRae.  Her name was “Moonbeam,” and that’s why she often posts comments here on TRB under that alias.  I guess the cat’s out of the bag here…

The listing agent was really pumping the personal connection and it sort of felt like he was trying to convince me that this conditional deal would go through, and not the other way around.

“Can we trust you, David?” he asked me, point-blank.

“Absolutely,” I told him.  “If you accept our conditional offer, we will firm up after the inspection.  I have no doubts.”

I didn’t have any doubts, to be honest.  At this point in my career, I had never had a conditional offer fall through.

They accepted our offer, which was bonkers.

To this day, through almost twenty years in this business, that was the only time I had ever ‘won’ in competition with a conditional offer.

It was madness.

What in the world was the seller thinking?  Why would they turn down guaranteed, unconditional offers, to work with ours?

I guess that wasn’t my problem.  Plus, I knew that Bram and Mary would do their inspection, realize there’s nothing to find other than what was in the inspection provided by the seller, and sign a waiver to firm up the deal.

Offer night was on a Tuesday and we had five business days to conduct our inspection and satisfy ourselves.  We booked the inspection for the very next day, Wednesday, and I attended in person.

The inspection was glowing.  The house was in great shape.  The inspector himself gushed about how great the house was.

And when all was said and done, I said to Bram and Mary, “I’ll send you the waiver tonight and you can print, sign, scan, and send back to me, we’ll firm up this deal!”

Those were the days before DocuSign.  I hope everybody had a reliable scanner!

I sent the waiver to Bram and Mary but I didn’t hear back from them.

On Thursday, I emailed them, but never heard back.

On Friday, I called them, and Bram answered.

“We’re going to take some time to think about this,” Bram said, and I answered, “Think about what?”

He said, “There’s just a lot to think about,” and my spidey-sense started tingling.

There was nothing wrong with the house.  The inspection was glowing.

Were Bram and Mary getting cold feet?

By this point, the listing agent was hounding me.  It had been two full days since we did our inspection, and he was wondering where his waiver was.

“David, I want to bring this Leaside-connection home!  Let’s get the waiver signed and the sellers can tell their kids that Moonbeam’s son sold their house!”

He knew something was wrong.  So did I.

On Monday, I didn’t hear from Bram and Mary, despite calling and emailing.

And then on Tuesday, I told them that we needed to talk.

We had until 5:00pm on Tuesday – which represented five business days, to sign the waiver and firm up the deal.

It was bizarre.  Who does an inspection on Wednesday and then takes six days to sign a waiver?

In the end, it was worse than merely waiting.

It was the worst possible outcome being realized.

Because Bram and Mary weren’t just waiting to firm up the deal, but rather they waited all this time just to walk.

At 4:30pm on Tuesday, Mary called me and said, “David, we’re not going to proceed with the purchase.”

And once again, I was stunned.

What happened?

They loved the house!  They were ecstatic when they “won” in multiple offers, with their conditional offer, no less.  The home inspection was glowing.  The kids loved the house.

What was I missing here?

I sat at my desk and thought about how the hell I was going to call the listing agent and explain this to him.

His clients had sold their house a week ago!  A full week!  And here they were, seven days later, waiting to find out if the sale was going to firm up.

I remember calling the agent on my Blackberry and sort of hoping he wouldn’t answer; like the first time I ever called a girl when I was eighteen.

But he did answer, just as the girl did earlier in life, and both outcomes were equally poor…

“Hi David, do you have good news for me?” he asked, with a genuine excitement in his voice.

I was hoping he would have already known.  I wished he had answered and said, “I don’t have a good feeling about this,” as that would have made everything so much easier.

But he didn’t.  He genuinely thought he was getting that waiver, and he fully expected this deal to firm up.

“No, I don’t,” I told him, about as bluntly and quickly as I could.  “They’re not firming up.  They’re walking,” I told him.

There was silence on the other end of the line.

“Well….that’s……that’s……wow….” the listing agent said as he fumbled for words, trying to process this.

“I mean….why?” he asked, when he was finally able to digest what had just happened.

“I don’t know,” I told him.

“Well, they’re your clients, David,” he shot back, now a tiny bit angry, “You have to know what they’re doing; what they’re thinking,” he told me.

But I didn’t know.  More to the point, I had no idea why they waited this long!  I mean, 4:30pm?  Couldn’t they have told me that morning?  Or the day before?  Or on Friday before the damn weekend?”

The listing agent was not happy.  “I have no idea what I’m supposed to tell my sellers,” he said.  “They were counting on this sale, you know.  They’re retiring and moving out to the country, and now I don’t know what they’re going to do.”

He regaled me with their life plans and I sat and listened, since I felt so bad about the whole situation.

Then he added, “They’re going to be very disappointed in you, David,” which made me feel like I was back in the library in grade three and the librarian was taking me to task for returning my books three days late.

The next day, I asked my manager to sign a Mutual Release so I could get Bram and Mary’s deposit back, and he asked me why my clients were walking from the deal.

I was so tired of not having an answer for that question.

One week later, I got the deposit funds back from the listing brokerage and brought the cheque to Bram and Mary.

I asked Bram, “What went wrong here, Bram?  What am I missing?”

Bram scratched his chin, looked up, and said, “I don’t know, David.”

That was the worst possible answer I could dream up.

Tell me that you don’t want to move.

Tell me that you lost your job.

Tell me something.  Just don’t tell me that you “don’t know,” since I don’t know, the listing agent doesn’t know, the sellers don’t know, and nobody understands why these people waited a week to walk away from a purchase that seven other buyers envied.

“Maybe the next house we buy doesn’t have a pool?” Bram said.

I was shocked.  Again.

“But Bram, this house did have a pool.”

Bram said, “Yeah, yeah it did,” as he looked skyward for some sort of answer.

“I don’t know,” Bram said.  “Maybe it was the pool?  I don’t know.”

And again, I remained bewildered.

None of this made sense.

They were really intelligent, seemingly normal people, but nothing about this was normal.

So ask me how surprised I was, two days later, when Mary emailed and said, “Hello David, we would like to go out this weekend and look at more houses.”

This was back when there were house(s), plural, to see, just about every week.

So we did.  We went out on Saturday and saw two more houses, and in the driveway of the very first house, I took the opportunity to say, “Guys, I don’t know what happened with the other house, but can we please agree to communicate and discuss from here on out to ensure that doesn’t happen again?”

Bram and Mary nodded and said, “Oh, of course, David.  For sure.”

It only took two more weekends and two more houses for Bram and Mary to find the house that they really wanted.

And the best part: this one was priced high, sitting on the market, and there wouldn’t be an “offer night” to deal with.

They said they wanted to make an offer, and I was quite pleased.

But then Mary threw me for a loop when she said, “And we’ll need our five-day condition on home inspection, as per usual…”

 

(TO BE CONTINUED)

Written By David Fleming

David Fleming is the author of Toronto Realty Blog, founded in 2007. He combined his passion for writing and real estate to create a space for honest information and two-way communication in a complex and dynamic market. David is a licensed Broker and the Broker of Record for Bosley – Toronto Realty Group

Find Out More About David Read More Posts

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8 Comments

  1. Marina

    at 7:20 am

    Please don’t leave us on a cliff hanger.
    Did they ever buy a house? With you or anyone else?
    Were they weird? Crazy?
    Did they have a fragile doll collection they didn’t want to move?
    Or a body buried in the basement if their current house?

  2. Appraiser

    at 8:22 am

    I have to say that back in the day, I would have dropped “Buffy and Jody” after the first inexplicable act inexplicability.

    This gets worse right?

  3. Francesca

    at 8:25 am

    These buyers probably didn’t think the sellers would ever accept the conditional offer and when the sellers did they were too embarrassed to explain to David that they were unsure or had changed their minds? Sometimes when deciding to purchase a house in a frenzy impulsive way which is often what a bidding war can create people get cold feet cause they feel like they aren’t necessarily in control of the process or need to make a quick decision under duress. This is probably why they had no legitimate reason for walking. I’m dying of curiosity to see how this story unfolds and whether they actually did purchase a house with you David eventually and if it still entailed this much drama!

  4. London Agent

    at 10:13 am

    Best cliffhanger in a while! Why do I love real estate drama so much… See ya Friday!

  5. Johnny Chase

    at 10:28 am

    Great story, but without question the best part is the admission of memory issues.

    I’m so forgetful lately I think I have early onset early dementia.

    Thank you David. You made me feel a little better about myself.

  6. brodg

    at 11:35 am

    AAArrrgh! A cliffhanger!

  7. Geoff

    at 8:19 pm

    Oh man reminds me when I sold very expensive custom built items. Every once in a while, we’d get a potential client that we just knew was a going to be a problem, so we’d quote about 40% higher than normal. It was easier to fire the client than take them on.

  8. Sirgruper

    at 11:29 pm

    Is this their form of entertainment?

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