Posts Tagged ‘real estate contracts’

Real Estate Agents: What You Need to Know to Avoid Litigation

Friday, August 29th, 2014

Because we live in a litigious society, if you are a real estate agent or broker there is always the threat of litigation hanging over your head. Working on a daily basis with contract and legal consequences, we all need to keep vigilant to protect ourselves. If you are named in a lawsuit or go into arbitration proceedings, keep in mind that you may have to pay the full cost of your errors and omissions insurance deductible.dreamstime_5338072

Here are some ways to help you stay away from the arbitration table and out of the courtroom:

1.  Have your broker review all your contracts. Unfortunately this is not something that is done with every contract in every brokerage, but it should be. Many brokers review the contracts and related documentation towards the end of the sale. If there were any egregious errors or omissions it may be too late at that time. I have often wondered why the local boards who make the rules do not make it a requirement that a broker review every contract before it is sent out. I have seen more poorly written contracts than I can count, and one recently where the buyers’ agents actually designated me as the representative of their client! Needless to say, I make a lot of phone calls to brokers.

You may think you know how to write a contract and you may have many years of experience doing so, but if you are not a lawyer it is a benefit to you to have broker review every time – it could save your behind and your pocketbook.

2.  Do not draft any addenda without legal or broker advice, as the wording needs to be approved to avoid legal ramifications. Remember, only attorneys are allowed to draft contracts. Most agents freely draft addenda and amendments all the time, but this really needs to stop. There are ways to word changes in order to make sure that the intended result is properly defined and cannot be construed any other way. Many agents may disagree with me here, but we need broker review on any documents related to the contract, because it can be construed as practicing law.

3.  Never give legal advice to clients. Almost every agent knows that this is a big no-no, but as a lawyer I have personally heard countless agents say things to their clients that either is legal advice or is on the cusp of being classified as such. If a question involves anything about the contract other than general answers (such as expiration dates, how long a contingency period lasts or where to sign, for example), then advise your clients to seek the advice of an attorney.

4.  Read the contract and all related documentation before your clients sign anything, every time. You might think I am crazy, but I know for a fact that many agents either have never read the documents they have their clients sign, or do not read them often. I know this because I see mistakes all the time. I know it is boring (we lawyers write a lot of words to cover every point), but I promise you that this will benefit both you and your clients.

This comment is timely, as the California Association of Realtors is about to launch a new Residential Purchase Contract. Take the free classes that will be offered to learn about this new contract and how the changes will affect your clients and the way you fill out your contracts. The same goes for all locales and all paperwork. Your association likely always offers classes on learning the proper paperwork you’ll need as a real estate agent. If not, talk with your broker.

5.  Read through all paperwork after it has been signed to make sure you didn’t miss anything. I don’t think this needs explanation. Let’s just say that I am appalled by things that are left out in contracts all the time…things that likely would have been discovered by proof reading, and certainly by broker overview.


The only way to avoid problems is to be vigilant, and doing so in real estate means understanding all forms, staying educated about changes and ramifications, never giving legal advice, and having all your paperwork reviewed by your broker. The hassle it may create will be nothing compared to being dragged into arbitration or court.


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What is an Escalation Clause and Should You Use One?

Monday, March 11th, 2013

Escalation clauses are becoming very popular again. Although controversial amongst those who work in the real estate field, they are not illegal nor prohibited. If you are a buyer or seller you should understand what they are and how they work…they could be a blessing or they could cost you in a big way.

An escalation clause allows a buyer presenting an offer to agree to pay a certain fixed amount higher than any other competing offers made on the property. Thus, the buyer has a huge advantage over other buyers. Usually there is a cap placed on the price overage.

Let’s look at an example. Say Mr. Seller puts his home on the market for $500,000. According to recent solds in the neighborhoods this is a fair price. He receives 3 offers, all for $500,000, and one with an escalation clause for $1,000 above any other bids, up to $510,000. Mr. Seller can either send out a multiple counter offer to all buyers, seeing if any of them will come up in price. If they do, the buyer with the escalation clause will still come in $1,000 higher, up to $510,000. If the comps do not support value over the $500,000 asking price, the only way any buyer getting a loan will be able to pay for this home is to agree to pay over appraised value, which many buyers will not or cannot do. Thus, the buyer with the escalation clause, who is presumptively willing to pay over appraised value, has an edge.

This sounds great for the buyer, who oftentimes cements his place as the winning bid in multiple offer situations. It also sounds great for the seller, who will undoubtedly sell his home over asking price. However, there are some major caveats when using these clauses, and you need to make sure you understand how they work in order to decide whether they are right for you.

Buyer Caveats

1. Place a limit on your bid. If you are going to utilize an escalation clause, it is important that you do put a cap on your price increase, for obvious reasons. Do not put yourself in a situation where you could be taken advantage of.

2. Understand possible consequences if your escalated offer is accepted. You need to make sure that you understand will happen if your offer is accepted. If you are obtaining a loan with 20% down, for example, you will have several options. You can include the higher contract price in your 80% loan amount, if possible. If not, you will need to be able to pay the cash difference. Similarly, if you do not include the increased price in your loan amount and the home doesn’t appraise, you will need to be able to pay the amount in cash over appraised value…unless you have a contingency in your contract giving you the right to cancel should the home not appraise – but this would make your escalated offer not very desirable to the seller and really defeats the purpose of an escalation clause.

3. Seller could use your offer to her advantage. Consider this: if you submit an offer with an escalation clause, it is possible the seller could use that to solicit higher offers, just by letting other potential buyers know there has been an offer presented with an escalation clause. This could be detrimental, so you have to decide whether you want to put yourself in that position. Also, how long does the seller have to contemplate your offer? You want to discuss this with your agent, and possibly limit the time the seller has to make a decision.

4. How do buyers really know there IS an escalation clause on a submitted offer? You need to be careful, because even if a listing agent informs you that there is an offer coming in with an escalation clause, you want to make sure any offer you present is one you can afford, and one that you can afford the increased price should the home not appraise at the price you are offering. In other words, if you know there is another offer with an escalation clause and thus decide to make your offer up to $10,000 over comparable market value, you have to be comfortable with the possibility that you will need to pay the $10,000 cash above appraisal value if the home does not appraise.

If you are a buyer who has been told there is an offer on the table with an escalation clause, you should have your agent obtain proof of this offer before presenting an offer. The listing agent can do so without disclosing the name of the other buyer or the price offered, by whiting out specific terms (name and price) and showing you the offer form.

5. Do not waive your contingencies. Make sure you keep your loan and inspection contingencies when using escalation clauses…you always want to make sure you know if there are any issues with the home that could cost you lots of money, and similarly you never want to waive your loan contingency (unless you happen to have enough cash to cover the purchase price in the event your loan does not go through.)

Seller Caveats

1. Escalation clauses may not be in the sellers’ best interests and could backfire. If you are a seller who has received an offer with an escalation clause, and other potential buyers know about this, it could ruin your chances of getting other offers. If the buyer with the escalation clause does not qualify or backs out for another reason, you could be left with accrued market time and no other offers.

Let’s understand this using the above example. Say buyer 1 presented the offer with the escalation clause; buyers 2 and 3 know this and also know it is highly unlikely the home will appraise beyond a certain number. Not knowing what buyer 1 offered, nor the terms of his escalation clause, they may simply decide it’s not worth it to present an offer at all under the circumstances. If you accept buyer 1’s offer and down the road the contract is canceled, you now have to start all over marketing your home, as you have no backup offers. You go back on the MLS with the accrued market time, potentially causing other buyers question why your home has not sold.

The important lesson here is to really understand how escalation clauses work, whether you are a buyer or a seller. Buyers need to be sure they can accept the terms should their escalated offer be selected. Buyers and sellers should talk to their agents and brokers to make sure using an escalation clause is in their best interests, and I also suggest consulting an attorney before doing so. Escalation clauses can be beneficial if you are careful.



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When Do You Truly Own the Home You Purchased?

Monday, January 23rd, 2012

I read an astonishing statistic today: Zillow reported that about 47% of homebuyers think they own a home once they have signed the purchase contract. Not only did this shock me, but it really made me upset. Someone – the agent – is not communicating. This is way too important to not discuss with buyers, and we have to have that conversation with them, every time!

After reading the statistic and tweeting about it, one of my colleagues responded that his clients changed the locks on their soon-to-be new house, before the close of escrow.

I decided to have a look at our residential purchase contract to find language that specifically states WHEN the buyer owns the home for which the contract was written. I could not find any, but there are numerous mentions of escrow and what happens during that period. I suppose those who drafted these contracts either assumed the buyers would figure it out that escrow must actually close before they become home owners, or assumed their agents would explain this.

While I think maybe the contract drafters may want to consider including a layman’s paragraph about actual ownership and and what point that is established, it is also extremely important for the agents to be sure to educate their buyers. Whether or not my buyers want to read it, I briefly explain what is on each page as they are signing, and always suggest they read it.

The lesson to be learned here is that if you are a real estate agent, you need to be candid with your clients. Explain everything, even if you think your clients already know it, or think it is silly you should do so. Buyers: if you do not understand something please ask your agent – that is their job, they have a fiduciary relationship with you and keeping you informed is of utmost importance.

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Carbon Monoxide Detectors: Are Sellers Liable?

Wednesday, October 19th, 2011

You may or may not have heard that as of July 1, 2011 carbon monoxide detectors must be installed in every single family residence. So, what is your liability if you are a seller – do you have to install them before the close of escrow?

While it is true that carbon monoxide detectors must be located in every home, it is not a requirement to install them in order to close escrow. However, the seller is responsible for disclosing in the Transfer Disclosure Statement (TDS) whether or not the home has carbon monoxide detectors installed.

Keep in mind that if you do not install them in your home you are technically in violation of the law – but whether that would actually be enforced is anyone’s guess (I suspect local law enforcement officers have better things to do).

If you are a buyer and would like the seller to install the detectors during escrow you can ask your agent to write that into your contract. If you are a seller, my advice to you is to spend the money on carbon monoxide detectors and forget about it – there are some great deals if you check. I recently purchased a set of two for about $20.

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Don’t Blow Your Real Estate Purchase: Understanding Material Terms

Monday, October 17th, 2011

Understanding the difference between material and non-material terms in a real estate contract is of great importance to the real estate purchaser. While most agents understand need for specificity in real estate contracts, buyers and sellers should also know the difference between material and non-material terms in order to avoid potential problems with the sale of property.

Material terms to a contract are those that affect the agreement as a whole, such as whether a buyer will pay cash or get a loan, the price of the sale or possibly the closing date. If the buyer breaches a material term s/he risks losing the initial deposit, as well as a possible lawsuit/arbitration.

Some examples of material terms include purchase price, close of escrow deadlines, and other terms in the contract upon which acceptance was based.

In most contracts where a loan is obtained it will not be considered a material term if the loan rate or product differs from that described in the contract, so long as the buyer can still perform within the specified time frames. But if a buyer needs to change a material term it can be considered a breach, giving the seller the ability to cancel the contract.

Take the example of a buyer who has made a cash offer but decides to obtain a loan after acceptance. As this is a material term the agent will need to approach the listing agent and ask if the seller would be amenable to this change. Oftentimes it could create a delay in closing, and could be a problem in a short sale transaction (where lenders often approve sales at lower price points when cash offers are presented). The buyer’s agent will need to discuss this change with the listing agent to see if this is possible, and it then should be put in writing and signed by all parties to the contract. If not, the buyer is bound to proceed with the terms as they were defined in the contract, unless that is impossible and you have not yet removed contingencies.

When writing a contract for the purchase of real estate it is imperative to have all the information at hand so as to avoid a material breach after acceptance. Agents should talk to the lender and make sure their buyer is qualified, discuss important dates with buyers, check current proof of funds on cash transactions – these are all things agents know but sometimes overlook. Many potential issues are covered during the contingency period, meaning that if the buyer cannot qualify for the loan s/he wanted during that time, or if a problem is discovered with the property after a home inspection, it is not considered a breach and the buyer can choose not to proceed without repercussions.

Doing your homework early, before submitting a contract, is a win-win for all parties to real estate contracts. Do not worry – that is why you have an agent representing you, and s/he can help walk you through it. Now more than ever it is critical to be diligent, so make sure your agent explains the important details.

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Backing out of a Real Estate Contract: Buyer’s Rights

Friday, September 16th, 2011

Real estate contracts in most states are and have always been pro-buyer, especially here in California. Buyers usually have a contingency period, in which they can complete home inspections, get their loan approved and any other things that are important before contingencies must be removed and they risk losing their initial deposit. What most people don’t know is that a buyer needs to have a legitimate reason to cancel the contract, even during the contingency period.

The California Residential Purchase Contract (RPA) gives the buyer several “outs” that allow the buyer to cancel the contract without being penalized and losing the initial deposit.

1.  Loan contingency. This is one of the main reasons contracts cancel. The buyer’s lender uses the contingency period – standard is 17 days unless the agent wrote in a different number – to get the buyer’s loan approved. During this time period if the lender finds the buyer cannot qualify for a loan, the buyer can effectively cancel the contract.

2.  Appraisal contingency. Likewise, all loans rely on appraisals of the property involved. If the property does not appraise for the agreed purchase price the lender will not fund a loan. The buyer at this juncture can go to the seller and renegotiate the purchase price as per the appraisal. If the seller refuses to do so the buyer can cancel the contract. However, it is important to keep in mind that once a buyer hands the appraisal over to a seller, the seller is made aware of the appraised value of the property in respect to potential future buyers. If the seller’s property cannot appraise for the amount he desires, his only hope of getting that amount is to find an all cash buyer who does not mind paying more than appraised value – good luck with that one.

3.  Buyer’s right to accept the condition of and matters affecting the property. If during the contingency period the buyer discovers there are problems or issues with the property  that the buyer does not want to or cannot afford to deal with, the buyer has the option to cancel the contract. Some examples include where the buyer’s home inspector discovers a plumbing or electrical problem that will be costly or is dangerous, and the seller will not agree to take care of it;  a cracked slab, necessity for a new roof, additions not built to code, or if there is an easement on the property that could effect use and enjoyment of the property, or a myriad of other issues. The contract protects the buyer’s right to back out upon discovering issues that make the property less habitable or otherwise affect the condition.

4.  Breach of seller’s duties. If the seller does not provide certain documents to the buyer on time, such as property and statutory disclosures, it may be cause for cancellation of the contract. The buyer must wait until the expiration of the time period and then provide a written notice to perform to the seller. If the seller does not do so in the time period provided the buyer may cancel the contract. Time periods are specified in the contract.

The California Residential Purchase Contract is written with protection of the buyer as a high priority. No one wants to sell a home to a buyer who is unhappy about it (or, let me rephrase that – I certainly do not want to do that, and most agents feel similarly). Look at your contingency period as a time to gather all the information you will need, so that you understand any faults associated with the property.

Most sellers will work with buyers on repair requests, but keep in mind that ALL homes in California are sold as is – the seller has no obligation to make any repairs. Limit your requests to those items that are dangerous or alter the habitability or enjoyment of the property. Lastly, keep in mind that in short sale situations and most foreclosure cases, the lender will not agree to any requests for repairs.
Happy home hunting! Please let me know if you have any questions I can answer about the purchase contract or the purchase process. I will be happy to address them in a subsequent blog…just make your suggestions below.



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