Real Estate Contracts

The purchase or sale of a home is one of the most complicated business transactions most people will be involved in during their lifetime. Whether the print is large or small, there is a lot of it! The purchase agreement covers not only the price of the property, but has many paragraphs governing the terms under which it will be conveyed to the new owners.

When you list your home for sale or when you begin your search for a new home, ask your real estate agent for a copy of the standard sales agreement. Familiarize yourself with the document ahead of time, and make certain you understand the responsibilities of both parties between the initial meeting of the minds and the closing date. You should be aware of all of the deadlines in the purchase agreement. Each contract is different, but there are usually time limits covering the structural contingency, the financing application, the loan commitment, and the closing.

You greatly increase the chances of a smooth transaction by being fully informed about the sales contract.

Whether it consists of several pages of big type or a few pages of fine print, a real estate purchase agreement is a serious, legally binding document. In most areas, there are “boiler plate” forms that spell out what each party agrees to do by certain dates and what happens if either side breaks the contract.

The best time to familiarize yourself with these forms is when you are beginning your search. Ask the real estate agent for a copy of the purchase agreement and then review it, keeping in mind that it has the force of law. If you don’t understand the document, consult an attorney. If there is a dispute between buyer and seller, a court will hold you to what the purchase agreement specifies, not what you thought it meant or what you thought the real estate agent said it meant.

There are several key points you should be clear about. What are the deadlines for loan application and obtaining financing? If you decide to back out because of the structural inspection report, can you do that? Do appliances convey? When will the closing take place? If you understand these clauses before you find the perfect house, you will avoid a lot of stress and minimize the likelihood of misunderstandings.

When you purchase a property, it usually includes the land and everything attached to it, such as buildings, trees, shrubs, etc. Most buyers are only interested in purchasing the real estate, not the owner’s personal property. What happens when personal property has become a part of the real estate? Is it actually a “fixture” which will now convey to the buyer with the real estate?

There are three tests which usually need to be satisfied. Has the personal property been permanently annexed to the real estate? Is it intended to become part of the real estate? What is the local custom? Fixtures may include shades, heaters, ranges, screens, storm windows, lighting fixtures, etc. To save misunderstanding at the closing–and perhaps the sale–it is important that the seller spell out specifically in the sales agreement what will go to the buyer as part of the property.

The stacks of papers that you have to sign in order to buy a house can leave you confused. The person conducting the closing will ask you to sign your name to countless documents that are filled with legal jargon. Some buyers just barely glance at each form and sign them without a lot of questions, while others find it very frustrating to try to read every form at the closing table.

You should read and understand the papers you sign. If you are getting a loan to buy the property, most of the paperwork will come from the mortgage company. In most cases, there is little time to read everything in advance because the forms arrive at the closing office shortly before closing is scheduled to begin. Most of the documents use standardized language, however, and you should be able to get copies of the documents ahead of time from the lender so that you can have your questions answered and be comfortable with the settlement process.

When you make an offer on a house, it is accompanied by an earnest money check. Earnest money is intended to demonstrate that you are “in earnest” about purchasing the property. The earnest money check is made out to the listing company. What happens to this check?

The party holding the check acts as an escrow agent until you go into closing. At that time you will receive credit for the amount of your check against the down payment and closing costs. Real estate brokers are required by law to keep escrow funds in a special account. These funds cannot be used to pay any other expenses associated with the sale. If you don’t complete the transaction, the purchase contract determines the disposition of your earnest money funds. Be sure to review this part of your contract with the real estate agent.

If you are in default on your agreement, the funds may go to the sellers, so be sure that you understand the deadlines in order to avoid breach of contract and forfeiture of your deposit. If you have any questions, be sure to ask your real estate agent for advice.

Before the professional inspects the home that you are buying, you will be asked to sign an acknowledgment of the scope of the inspection. This document will probably include a disclaimer clause designed to relieve the company of responsibility if they should miss a defect. What happens if a defect is missed during an inspection?

The disclaimer clause may get the inspection company off the hook for a defect if there is no visual indication of a problem. If the inspector clearly indicated that he was not checking for that problem–many inspectors do not check for dry rot or inspect roofs–then the recourse will be limited. If negligence is involved, or if the defect should have been obvious to a professional inspector, the disclaimer is not likely to protect the inspector. If you find an undiscovered defect, discuss the matter with the inspector. Depending on the situation, the responsibility for remedying the problem may rest with you, the sellers, and/or the inspector.

Both buyer and seller should be aware of all of the deadlines in their purchase agreement. Each contract is different, but there are usually time limits covering the structural contingency, the financing application, the loan commitment, and the closing.

If you are a careless buyer, you could lose your right to ask a seller to pay for needed repairs. There may be a limit on the time the seller has to respond to the buyer’s request to complete repairs that are not required by the contract. Failure to apply for your mortgage on time may place your deposit at risk if the loan is denied. In many cases, the agreement can be declared null and void by the seller if financing is not approved within the time frame set forth in the contract. A delayed closing can cost the sellers money, and they may ask the buyer to reimburse these expenses.

Work closely with your real estate agent to ensure that all of your transaction deadlines are met.

Sellers may be reluctant to accept an offer that is contingent on the sale of another property. However, such a sale can be structured to minimize the risks.

The seller should put a limit on the amount of time that the buyers have to accept an offer, and they should keep their home on the market during that time. They should also reserve the right to require that any contingencies be met within a short period of time, ideally 24 to 48 hours, if they get a second offer. This is called a “First Right” contingency.

Contingent sales can work well for the sellers. The buyer is not in a position to ask for concessions on price or terms and may be able to get interim financing. Each situation is different, however, so go over the terms with your real estate agent before accepting a contingent offer.

Buyers walk into your home in your area and fall in love with it. There is one problem–they will have to sell their home before they can buy yours. Their offer contains a contingency clause which makes the purchase dependent upon selling their present home. Should you accept such an offer?

Your decision should be based on several factors. Is their home being professionally marketed at this time, or are they trying to sell it themselves (a risky proposition!)? How long has it been on the market? Is it overpriced? If the house doesn’t sell, can the buyers take out a bridge loan or make other arrangements to get to the closing table? How important is timing for you? Will the buyers agree to let you continue marketing your home and accept a non-contingent contract (and void theirs) if their house does not sell? Contingent contracts often work out well, but you need the help of a professional to weigh the pros and cons.

Some buyers and sellers arrive at the closing feeling terrific about the transaction. They like each other, their new home, their real estate agent, and even the lender! Others feel completely stressed out as a result of the transaction process. Whether you are the buyer or the seller, you can play a part in determining which of these scenarios characterizes your closing.

The professionals who are involved in real estate transactions work hard to make things go as smoothly as possible, but the quality of the transaction often depends not so much on what happens, but how you react to what happens. If you communicate confidence in the professionals who are helping you, the atmosphere will remain positive even if there are complications to be worked through. Real estate transactions are inherently complex. One of a real estate agent’s most important responsibilities is to complete the sale, even if everything that could possibly go wrong occurs.