ISSUE:
The lender has approved the short sale, and all contingencies have been removed. The seller is receiving no monies at the closing scheduled in two weeks. The buyer has just learned that the seller has removed some of the fixtures from the home, including sinks, toilets and the evaporative cooler on the roof. The buyer no longer wants the home. Can the buyer cancel the contract now, or does the buyer have to wait until close of escrow?

ANSWER:

Under Section 1g of the Contract, the seller is prohibited from removing fixtures from the home. If the seller removes those fixtures prior to closing, the seller has anticipatorily breached the contract, i.e. unequivocally asserted that the seller will not perform at the time of closing. Therefore, the buyer should issue a 3-day cure period notice requiring the seller to return all of the fixtures. If the seller fails to do so, the buyer is entitled to cancel the contract at that time and is not required to delay cancellation until close of escrow.

Arizona REALTOR® Digest October 2009


About the Author

Michelle Lind

K. Michelle Lind, CEO of Arizona REALTORS®, is also an attorney, State Bar of Arizona board certified real estate specialist, and the author of Arizona Real Estate: A Professional’s Guide to Law and Practice.
Please note that this article is of a general nature and may not be updated or revised for accuracy as statutory or case law changes following the date of first publication. Further, this article reflects only the opinion of the author, is not intended as definitive legal advice and you should not act upon it without seeking independent legal counsel.