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Verbal (+emails) contract seller withdrawing from sale
I have been searching for a sailboat and finally found one that I was interested in for sale by owner(no broker) in Toronto (I'm in Ohio). After numerous emails (and a weather abort) I finally made the trip up there to looked at the boat, liked it and made an offer which was accepted.
I then moved towards the process of completion by arranging the survey, approving a contract, agreeing the deposit, finding an escrow service etc.
We had all of the details squared away (except maybe which escrow service we were going to use) and everything recorded in a series of 30/40 emails when suddenly the seller states that he didn't realize how much work would be involved pulls out of the deal and puts the boat on with a broker at a higher price!
Now in my mind we have a valid contract for sale. The seller is a professional, maybe an executive of a large company and I am really surprised by his behavior, I spent a couple of hours with him and thought he was a man of honor and integrity.
Regardless of whether I can actually enforce the contract would anyone dispute that I do in fact have a valid contract?
Any ideas for me (can I file a lien?)
You have a valid point with little to no chance of enforcement, unless you plan on throwing money at it. A good lawyer could scare him a bit, or he might dig in his heels and it's just not worth it.
Let is soak for a while, then visit the broker, look at the boat again, say nothing of your history. Wait a week, go back for a second look. Wait another week and visit the broker with deposit check and an offer of 10% lower than your first. Don't mention who you are or any history, if you happen to see the owner, just say hello and act like it never happened. Let them negotiate you back up to your original offer.
Boats don't sell fast, it's just a fact of life, sometimes you can't give them away.
Or, move on. Don't waste your energy on revenge, it's not worth it. Be the bigger man.
Are you out any money? You mentioned a survey. Did he sign the contract you approved? If so you have a case, but dealing across the Canadian border is not going to be easy.
................The seller is a professional, maybe an executive of a large company and I am really surprised by his behavior, I spent a couple of hours with him and thought he was a man of honor and integrity.
Surely you're kidding? Surprised that an "executive of a large company" wouldn't have "honor and integrity?"
Find another rock for one to crawl out from under.
Sorry to hear about this bad news for you.
The only things most (but certainly not all) executives of large companies have is their golden parachutes and their stockholders' interests. Flog the customers.
Character has little relationship to occupation. It is product of upbringing and core philosophy. If he is a liar why would you believe he is what he says? Sounds like one of the mideastern or Chinese based e-mails concerning your easy fortune if you just send them your bank information....... Greed kills whether you are the buyer or seller.....
I'm guessing the broker spooked the owner into thinking he was listing at below market value. Now, he will be waiting to get an offer that will be close to what he was originally asking, and have the pleasure of paying the wily broker.
Regardless of whether I can actually enforce the contract would anyone dispute that I do in fact have a valid contract? Any ideas for me (can I file a lien?)
No dispute here, you have a valid contract. Enforcement? That's a whole different question. Especially given the international nature of the deal.
You could try contacting a lawyer. Probably need to find one in Toronto. That will likely cost you some money. The question is, how much time and money are you willing to throw at this? Is it better to just walk away now? (I'm sure it wouldn't be as satisfying as forcing him to honor his deal, but it might be the smart thing to do.)
Personally, I kind of like the idea of waiting a few weeks, contacting the broker, and offering even less than you had agreed to before.
You have seen the boat so you can make a lower offer from your computer. make a lower offer site unseen with the dealer. all he can do is refuse it. then you can come back with another offer.
I had a similar situation happen through a US dealer. contract and all, with deposit. His Wife decided he did not want to sell and get that bigger boat after all. Until the boat is signed over to you there is nothing that you can do. Basically the contract says he will sell you the boat and it will be yours when he signs it over to you.
I went through the same process a couple of years ago, did everything basically the same way except the escrow service. With a larger (than mine) transaction I would have done that part too, with just as many emails and I did do the contract before hiring a surveyor. In my case honestly the seller orchestrated the transaction pretty much but everything he presented was how I would do it anyway. I think he felt better about the transaction driving it.
Maybe the contract sooner would make the seller feel better in your case and since we cant read the emails who knows what transpired. Interesting point is someone, I prefer to think we shared it, saved $3500 which is what he would have paid a Broker to sell the Boat because he was moving far away. That was to be his next step or so I was told.
Unfortunately it is one of the risks taken when not using a broker. My recent purchase of my Hunter legend 40 was with a private party. Fortunately I have a previous relationship with a broker that helped facilitate the purchase anyway. He was involved with our original boat purchase a few years ago and will sell our former boat It provided a level of comfort and security to both sides.
I hope you find another dream boat in the near future.
I think without a deposit being taken, there is no contract. Until there has been an exchange of something of value you have not lost anything material so that is all a court will give you. Basically the court would most likely say "here we give you back what you lost, nothing...." Now if you had paid a surveyor or an attorny to draw up paperwork you might be able to sue to recover those losses. (suppose you could sue for the electricity you lost due to the emails, so you might get $0.05 Canadian.
Don't play games with the owner - don't give a crap about the owner. You want the boat and you are willing to pay a certain price. You've established that. Now, ask the owner for the broker's contact info - yes, NOW. And be friendly.
Don't play games with the broker - don't give a crap about the broker. You want the boat and you are willing to pay a certain price. Call the broker ASAP and make the same offer that you already agreed to with the owner. You won't lose a thing. If the offer is refused, then you can start the cat and mouse BS.
In playing games, you risk somebody else offering $100 more and you not getting the boat you want. You also lose precious 2016 sailing time.
.....
Now in my mind we have a valid contract for sale. The seller is a professional, maybe an executive of a large company and I am really surprised by his behavior, I spent a couple of hours with him and thought he was a man of honor and integrity.
Regardless of whether I can actually enforce the contract would anyone dispute that I do in fact have a valid contract?
Any ideas for me (can I file a lien?)
You don't have a contract until you have a contract, which in the boat buying world means a written agreement. Your emails amount to an agreement to develop a contract, either party can decide to terminate that agreement for no reason or obligation up until the signing of a contract. The contract then defines the legal obligations of the parties including circumstances and procedures by which the contract may be terminated.
First off, a contract absolutely does not have to be in writing to be valid. There are some jurisdictions where there are laws about certain sorts of contracts having to be in writing. An example is that here in Florida there is a law that says that a contract to buy or sell real estate is not valid unless it is in writing. But this law does not (again, in Florida) apply to buying or selling boats, and so a verbal contract CAN, in fact, be completely legal and binding on a boat sale.
Secondly, e-mails are writing! This was not a verbal contract, it WAS in writing! It may not have been on a piece of paper, written in unintelligible legalese, but it was a contract in writing. And electronic communications, such as e-mails, have been considered by the courts to be just as valid and binding as any paper contract for quite a few years now.
That said, I will repeat that it may well not be worth it to pursue this. I would probably just walk away. There are a lot of good boats out there. Or go through the broker with the understanding that the negotiations start all over again. That is, offer low and expect to negotiate up some.
Absent a signed purchase and sale agreement and an exchange of consideration, even if only a refundable deposit with an escrow holder of some sort, you have no "enforceable contract". Moreover, without an agreement as to law and venue, just where would you expect to go to "enforce" your non-agreement. The seller is supposedly in Canada and you're in the US. A finding in your favor in the US would be difficult or impossible to enforce absent a legal proceeding in Canada, if then.
FWIW I suspect the seller was contacted by the "broker" who saw his FSBO advertisement and advised that he/she had much undervalued the boat and that the broker could do much better for him/her even considering a sales commission. Moreover, without a signed purchase and sale agreement, I suspect the broker convinced him/her that there was, in fact, no binding contract of sale hence he/she could renege on the sale to you without consequence and list with the broker.
Frankly, I would chalk it off to "Lessons Learned". Moreover, since one is often dependent upon a seller for assistance post sale, I don't think he/she is someone you might need to rely upon even if you could force or resurrect your purchase/sale.
This is a form over function problem. The email exchanges may have explicit contractual agreement, as to what was being agreed to and the proper identification of consideration. I highly suspect they do not state agreed up on procedures for defaults and how they are to be cured.
Nevertheless, while you may have the technical form of a contract, the function of your emails will leave you hanging, almost certainly.
Get is all in writing next time, signed by both parties, before you spend any money. Brokers can help with these and there are form contract on the BoatUS site, iirc.
Here's the bottom line in a typical boat contract. The buyer wants the seller to be obligated to sell, as is. The seller wants the buyer to be obligated to buy, if she passes survey (however, only the buyer decides if she passes). If items are identified in the survey, either party can usually walk. The seller can refuse to address them and the buyer can refuse to buy, even if they are addressed.
This was a private sale no broker. I did see the boat re-listed on sailboatlistings, it was only listed at slightly more than the original asking price ( I think just enough to cover the commission) I replied that I would like to buy the boat at our agreed price but heard nothing back. I asked the web administrator to take the ad down and they did.
I consulted a lawyer friend who agrees that I have a valid contract and it turns out that he has a buddy with a practice in Toronto so that may incr are my odds. I wouldn't be looking for damages I would be looking for specific performance of the contract.
Buyer is a CPA for a big Canadian bank and is SO busy although he didn't seem to mind taking 2 days of my free time from me (+ gas, tolls, food and lodging $$) I guess his time is more valuable than mine!
I can't find a comparable boat to buy I have been looking all winter) and was looking forward to a little adventure of sailing her home.
You're swimming in the ocean of theory, against the current. It's warm and toasty and you're doing all the right things, but never get anywhere. Forcing performance is no way to buy a boat. If you have any questions of the prior owner, you'll be ignored. How about just wanting to know what the last bottom paint was, so you can choose a compatible one the next time. That's not a good way to buy a boat.
Travel expenses are clearly on you. The buyer can't be obligated, if they never agreed to pay them or could know what they might be. Any expense incurred, such as a survey, might be recoverable, if they breached contract. I suspect it isn't worth the time or cost to pursue. It was a good lesson. Just write it off to that.
If you're reportedly willing to travel, there is no way it's the only right boat for you. There are thousands of unsold boats out there.
I'm confused, Why would a Web administrator take a listing down at the request of a buyer?
In any event, You said that the price is only "slightly" higher than the original listing. Not knowing how much $ slightly is, but just applying it's normal meaning. You have to decide whether you want the boat or not. If you want the boat, Just offer them what they're asking. ( if it's only "slightly" more, and go sailing). Then, let the broker earn his/her money by handling all the paperwork, taxes, title searches etc.etc. for the both of you.
IF This IS the boat you want, and you haven't seen another listed all winter, Why quibble over a few bucks and get lawyers and judges involved.
Keep your eye on the goal. Sailing this summer.
I don't know if there's anything nefarious going on here. I mean if it took 30 to 40 emails to get this far, in the sale, I can almost see where the owner might have simply wanted to hand the sale off to an agent.
Frankly you may have a contract you might not. It really depends on what's in the emails. But if you are going back and forth that many times I would be willing to bet that you have some of the elements of one. But my guess is that you don't have a contract, but are in continuing negotiations over the terms of the contract. At this stage either party can walk away. At this point it would just depend on the facts and content of the emails, figure for $200/hr you can hire an attorney to figure it out.
My recommendation would be to offer exactly what you offered before, with the same stipulations and see what happens.
i would seek another boat.
and do not be scammed into putting too huge a deposit to lose in process.
this is likened to buying a used car. be wary.
never forget this is still a buyers market. there are boats out here that do not have sketchy owners. find one and enjoy your life
I stated that he was only asking slightly more than the original ASKING price! $4000 or about 13% more than our agreed price. A nice little bump for the seller now he knows he has the buyer hooked!
I will not be paying any lawyers $200 ph!
Capecodda, I just came to the same conclusion. I remembered the the phrase about the 2 happiest days in a boat owners life and I realized that this guy was taking one of those away from me. I wanted to have a great experience in the buying process not being worried about what the guy might do to the boat out of spite if I had managed to force him to follow through with the sale.
Accordingly I have decided to go back to my #2 boat a well equipped and cared for 1987 Catalina 30. Owned by a sweet old couple who had made more than there fair share of family memories aboard her. Now I will make my own.
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