California Civil Code 1675 is not the only arrow in the canceling house or condo buyer’s legal quiver, just the surest. As I discussed here and here, C.C. 1675 allows the buyers to get all but 3% of the purchase price back from their deposit, but other rules may allow them to recover their entire deposit.
Under California Civil Code 3275, a plaintiff suing a developer for a return of a purchase deposit can argue that even more of his deposit should be returned than the “all-but-3%” of C.C. 1675. To survive a buyer’s motion for summary judgment, the defendant is burdened with producing evidence that it has been damaged by at least as much of the deposit it wants to keep. For example, in Timney v. Lin, 106 Cal. App. 4th 1121 (1st Dist. 2003) a buyer who was unable to obtain financing and had to cancel his purchase agreement demanded and received his entire deposit of $31,250 returned. Judge Stevens of the California Court of Appeal wrote that because the defendants “produced no evidence in the trial court demonstrating they suffered any cognizable damages” or that “it was impracticable to estimate the amount of any damages” that California law requires judges to “assume there were no such damages.” With no damages shown, the court awarded the buyer his entire $31,250 deposit back.
Had the buyer only relied upon C.C. 1675 he would have been entitled to $20,281.25 of his $31,250 back, with the seller keeping $10,968.75, or 3% of the purchase price of $365,625. Thus two different laws allowed him to recover his deposit back, one a partial refund, one a full refund.
Greg Weston is a graduate of Harvard Law School and experienced business attorney licensed in California and Florida. Mr. Weston’s San Diego-based practice focuses on representing individuals and small businesses against large corporations, including cases involving condominium purchase agreements and other real estate investments. He can be reached at (619) 255-7098 or firstname.lastname@example.org. Comments about the blog via e-mail are welcomed.