What Is Rescission In Real Estate Contracts?

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Written By Justin McGill

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If you’re thinking of backing out of a real estate deal, you may be wondering what is rescission in real estate. This legal process allows buyers to cancel their purchase contract and get their earnest money back under certain conditions.

I know from personal experience that the home-buying process can be stressful. My husband and I were thrilled when we finally found our dream home after months of searching. But just a few days before our scheduled closing date, we started having doubts about whether we could really afford the monthly mortgage payments. We contacted our real estate agent and asked if there was any way to back out of the deal without losing our earnest money deposit. She told us about what is rescission in real estate law and how it might apply to our situation. After doing some research, we decided that pursuing rescission was the best option for us since it would allow us to get our deposit back and walk away from the deal with no further financial obligations.

If you’re considering using rescission to cancel your own purchase contract, here’s everything you need to know about this legal process.

What Is Rescission In Real Estate?

Rescission in real estate is the act of voiding a contract. This can be done by either party to the contract, but must be done within a certain timeframe and usually for a specific reason. If you are thinking about rescinding your real estate contract, make sure you understand the process and the potential consequences before taking any action.

If you have lost your job, the best thing to do is contact your mortgage company as soon as possible. They may be able to work with you to create a new payment plan.

If you are married, both names do not need to be on the mortgage, but it can help if they are. Once a home loan is approved, the next step is usually to start looking for a house.

If you have a lien on your home, you may still be able to refinance your mortgage.

If someone dies and leaves a house behind, the bank may take possession of it.

Rescinding a contract allows you to cancel it for any reason. A rescinded deal will put you in the exact same position you were in before you signed the contract.

If you wish to rescind a contract that you have signed, it is important to understand the terms of the contract and whether you are able to do so. You may be able to rescind the contract if you feel that you did not understand the terms or if you felt rushed when signing it.

However, whether or not you can rescind the contract depends on the specific circumstances.

Sometimes you have a right to rescind, and other times you don’t.

What Are Grounds for Rescission?

There are many reasons that could warrant the cancellation of a contract, but not all of them would allow for rescission. Some grounds for rescission include:

  • Fraud
  • Undue influence
  • Misrepresentation

If you wish to rescind a contract, you must do so immediately, or within a reasonable amount of time after discovering the facts which allow you to do so. The amount of time considered to be reasonable is dependent on the situation.

Rescission is an equitable remedy that cancels or nullifies an agreement.

In cases of fraudulent or misleading behavior, rescission of a contract can be granted. This can also be done if a party was unduly influenced into signing the contract.

There are two types of rescinding a contract: rescission in equity and rescission de futuro.

Also referred to as rescission ab initio (from the beginning), rescission in equity works by undoing everything that happened after the agreement was signed.

Rescission de futuro (for the future) describes the situation of plaintiffs who are entitled to contract termination after a breach.

Rescission as an equitable remedy is, however, subject to some discretion. Likewise, it is essential that plaintiffs are capable of effecting restitutio in integrium.

This allows the contracting parties to go back to their original positions before the contract was made. However, the amount of restoration usually varies and will depend on the reason for rescission.

In the case of fraudulent activity, a court may hesitate to grant full restoration of a phone number. However, in the case of an innocent mistake, a restore request is usually granted. This is because fraud is a deliberate act, whereas innocent misrepresentation is not.

The Impact of Contract Rescission

The rescinding party must return all benefits and actions that were obtained while under the agreement. This includes reversing any actions, statuses, and positions back to what they were before the relationship began.

No compensation is awarded to either of the parties during a contractual cancellation, and once a cancelation is enacted, all involved parties become unable to take further action regarding the canceled agreement.

If you must cancel or retract any contract, be sure to notify the other parties involved. Also, return any benefits and money you have received.

3-Day Right of Rescission

Borrowers applying for a HELOC (Home Equity Line of Credit) may have seen a Right to Rescission.

Under the Truth in Lending Act of 1968, a 3-day cooling-off period is given to HELOC customers who may want to change their minds after signing a contract.

This law is meant to protect consumers who may be overwhelmed by the terms of the new mortgage loans, and give them time to review them before they go into effect.

The rescission period is 20 days after signing, during which time the customer can cancel the deal without any repercussions. The lender must also give back any fees that were paid, and relinquish all rights to the collateral.

However, not all mortgages or loans that are secured by a mortgage have this right to rescind.

The following are non-rescindable:

  • Mortgages for the outright purchase of a home
  • Loans to refinance existing loans from the same lender
  • Mortgages on an investment property or a second home

How Rescission Protects Home Buyers

The 1968 TILA was put in place to protect consumers from deceptive and unfair practices in the lending industry and includes the three-day right of rescission.

The 1974 Real Estate Settlement Procedures Act (RESPA) also protects borrowers by requiring lenders to disclose a mortgage within a certain timeframe. This empowers you to make smart decisions about your mortgage.

Under the TILA-RESPA Integrated Disclosure (TRID) rule, all lenders are required to provide loan estimates and closing costs to prospective homebuyers.

The Right of Rescission Period

The right of rescission period is three days long. It is triggered by these three events:

  • You’ve signed the promissory note.
  • You’ve received the TILA disclosure document.
  • You’ve received two copies of the notice of your right to rescind.

Once the clock starts, you have three business days to rescind the contract. Saturdays count as business days but Sundays and holidays do not.

How to Exercise Your Right of Rescission

You’re not required to give a reason when you request to cancel a contract, but there are a few scenarios where you might want to.

  • Your financial situation has changed and you can no longer pay for the loan.
  • You’ve found a better deal from another lender.
  • You’ve simply changed your mind.

If you no longer want a contract with a lender, be sure to let them know as soon as possible. Lenders are required to disclose how to cancel a contract, but the process can vary depending on the lender.

If the lender didn’t provide a specific address, you can send the completed request for payment to the address of the loan servicer, which is usually the address used for monthly statements.

The request for rescission must be mailed to your lender within three days of signing the refinance agreement. Be sure to keep proof of mailing.

After you’ve asked to cancel your contract, lenders are required to refund any fees you paid within the following 20 business days.

If you received a payment or asset in the transaction, you can hold onto it until the reimbursement is provided, but you’ll have to return it once that happens.

What is an Example of Rescission?

Rescission is the cancellation of a contract by mutual agreement of the parties. For example, if two people agree to buy a car together and then have a falling out, they may agree to rescind the contract and each go their own way.

What is an Example of Rescission in Real Estate?

There are two types of rescission in real estate: voluntary and involuntary. Voluntary rescission occurs when both parties to a contract agree to cancel the contract. Involuntary rescission occurs when one party to a contract breaches the contract, which gives the other party the right to rescind.

Conclusion

What is rescission in real estate? Rescission is a legal remedy. If you’re thinking of backing out of a real estate deal, rescission may be the best option for you. This legal process allows buyers to cancel their purchase contract and get their earnest money back under certain conditions. Be sure to do your research and consult with an experienced real estate agent or attorney before taking any action.

Justin McGill