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Real Estate Agreements

Real Estate Agreements

A real estate contract is a legally binding document that outlines terms agreed upon when two or more individuals negotiated a real estate transaction. The terms outlined in a contract are put into effect upon signing. They typically include details such as real estate contingencies, what appliances are included, the deposit amount, who is responsible for paying closing costs, and the date of closing. As a real estate investor, you will find yourself negotiating and signing real estate contracts any time you strike a deal.

Building A Real Estate Contract

Simply put, a real estate contract aims to clarify the home buying process while offering protection to both the buyer and seller. It can be helpful to keep this in mind as you start to build a real estate contract. To start, a prospective buyer will submit their official offer letter. The seller can either reject or counter the offer, making changes to items like the purchase price, closing costs, or contingencies. Thus, beginning the negotiation portion of building a real estate contract. From there, the buyer can choose to modify or accept the new terms adjusting the same items listed above. Often this process occurs between the buyer and seller’s real estate agents. What they eventually decide on will then become their real estate contract.

A real estate contract becomes legally binding when the document secures a property’s status and is signed by both parties. In simpler terms: a contract only becomes legally binding when it is signed and sealed. Real estate contracts are sealed by properties and then signed by those on either end of the deal. To obtain both signatures, all parties must agree before a contract is considered valid. If one party submits a counteroffer, the original contract will not be legally binding because both individuals did not agree to the terms. There are a few steps investors can take to ensure the success of a real estate contract. First, everyone must understand what is said within the agreement. This will require using everyday language, avoiding abbreviations, and reviewing any potentially confusing areas. Investors should also be sure to include an expiration date, as real estate contracts are often time-sensitive. Include deadlines within the contract, and specify what happens if they are not met (typically, this would result in breaking the contract).

Requirements Of A Real Estate Contract

As with most contracts, requirements must be met before a real estate contract can be enforceable. Here are all the requirements needed in real estate contracts:
• Offer: The first party will present an offer to the second party in the form of a real estate contract. They must write it, sign it, and then give it to the second party. The second party may then accept, reject, or make a counteroffer.
• Acceptance: The second party accepts the offer by signing the real estate contract. The contact is required to have original signatures from both parties. Any changes either party makes should be initiated. In the case of a counteroffer, the original offer will be voided and not legally binding for either party. If the offer is rejected, the contract is terminated. If you receive no response, the contract will expire on the date indicated.
• Consideration: Consideration indicates something of value that will be exchanged between both parties (most commonly in the form of money). Consideration could also be another property or a promise of performance.
• Legal Capacity: Both parties should be eligible to enter into a real estate contract. Those who are not legally able include minors, someone who is mentally impaired, etc.
• Legality of Purpose: The real estate contract cannot include any illegal actions.

What to Include In a Real Estate Contract

Contracts are used to close different types of real estate transactions, and each agreement will vary accordingly. There are, however, a few essential elements to any real estate contract that you should become familiar with. By understanding the materials needed, you can help ensure each agreement you enter is comprehensive and precise. The following list outlines items to include in various real estate agreements and contracts:
• Price and Timing: The two most basic elements necessary to every real estate contract are the final purchase price of the property and the transaction timeline. This portion of the contract should specify when contingencies will be completed and when the title will be transferred. Both parties need to clearly understand this information for the purchase to be successful, and it is commonly what the real estate contract will open with.
• Contingencies: Contingencies refer to any items that must be completed for the transaction to go through. Each type of contingency will specify how and when it is to be done. For example, the seller may need to make certain repairs to the property before the closing period. If contingencies are not met, both parties have the right to walk away from the deal.
• Inspection Details: The most common type of contingencies are those associated with the home inspection. Every real estate contract should include a contingency that allows buyers to walk away if the property inspection does not go to plan. They should specify which, if any, repairs the sellers are required to make before closing. Inspection details (and contingencies) will clarify expectations for both parties and protect buyers from being forced into a transaction they did not sign up for.
• Financing Clause: It is important to also include a contingency that allows buyers to back out of the transaction should their financing fall through. In some cases, it is also a good idea to add a clause protecting the buyer if their previous home does not sell.
• Closing Costs: Always specify who is responsible for closing costs, and always keep an eye out for this information. In many cases, sellers may be in charge of covering these costs, but it could be buried within the contract. Make sure closing cost information is clear in any real estate contract to avoid confusion.
• Warranty: Some sellers will include a home warranty when advertising a property. This is meant to cover certain repair costs, though it all depends on the sellers. If there is a warranty for the property, it needs to be listed out in the contract, so both parties understand who is responsible for what.
• Contract Default: It is very common for real estate contracts to state what happens if one or more parties default. This not only sets clear expectations for buyers and sellers but also helps avoid court proceedings if someone fails to live up to their end of the bargain. By including the ramifications of default, there will be no “what if” questions at the time of the agreement.
• Riders and Addendums: This portion of the contract will specify any additional information necessary to the transaction. The most common example of a rider or addendum is information about an HOA, if applicable. The real estate contract should clearly state the rules and requirements, making the potential buyer fully aware.

Types Of Real Estate Transactions

Several types of real estate transactions will demand the use of a contract agreement. Before getting into the dissection of different real estate contracts, it will be helpful to review the following types of real estate transactions:
• Buying a home: As an investor, you will come across many properties that you’ll want to purchase throughout your career.
• Selling a home: You will also find yourself selling some of the properties you had purchased, and hopefully at an increased value through improvements and appreciation. Your selling agent can help market your investment property to prospective buyers.
• Buying a property to rent: If you are interested in becoming a landlord and earning rental income, then you will, of course, purchase rental properties. This can range from single-family homes to multi-unit apartment buildings.
• Fix and flip: A fix and flip property is the type of investment in which you will typically acquire a property that is being sold under market value, such as a foreclosure or distressed home, and put in an investment to renovate it. Investors will typically then re-list the property on the market as soon as they can for an increased value.
• Wholesaling a property: A wholesaler plays an integral role of finding off-market properties and assigning the purchase contract to an end buyer, such as a rehabber.
• Prehabbing a property: Prehabbing is a type of exit strategy through which an investor makes minimal improvements to a property, just enough to make it appealing to another end buyer such as a rehabber. Some might argue that prehabbing is a step between wholesaling and rehabbing.
• Serving as a lender: At some point in your investing career, you may build enough cash flow to the point at which you can serve as a private money lender to other investors. In this case, you will need to strike up an agreement with your borrowers, such as the loan term and interest rate.

Types Of Real Estate Contracts

As a real estate investor, it is necessary to be well-versed in the various real estate agreements and contracts you will use throughout your career. These contracts are designed to serve your best interests, such as protecting your investments and minimizing your liability and risk. It is also helpful to have an understanding of how these contracts work to protect the other party.

Purchase Agreement

A purchase agreement, or sales contract, is the most common type of real estate contract. As the name suggests, this is a real estate contract that lays out an agreement between the buyer and seller of a specific property. This type of real estate contract includes all the typical elements of a contract:
• Identification of both parties
• Property description
• Condition of the property
• Purchase price of the property
• Contingencies
• Included and excluded appliances and fixtures
• Type of deed
• Earnest money deposit
• Closing costs
• Party responsible for each cost
• Date of closing
• Terms of possession
• Signatures of both parties
• State/Association Purchase Agreement: Many states, and the realtor associations that serve local markets, have standardized purchase agreements they use to guide their transactions.
• General Purchase Agreement: This is a stripped-down, usually much shorter, version of the state/association purchase agreement. This real estate contract is a great option when working directly with sellers and not buying a property through a real estate agent. If you prefer to use a general purchase agreement with an attorney or real estate agent, be sure to point why you want to use the agreement, and emphasize how it can save time for all parties.
• Property-Specific Purchase Agreement: If you’re buying a property outside the traditional single-family paradigm, such as a mobile home or piece of vacant land, you may need to use property-specific purchase agreements (this will depend on the market). Though there is quite a bit of similarity with these types of purchase agreements, these types of real estate contracts have certain clauses about the type of property being transacted.

Real Estate Assignment Contract

A real estate assignment contract is primarily used in a wholesaling investment strategy. You find a distressed property, secure it under contract, and assign that contract over to a second buyer (usually at a small profit to you). The meat of real estate assignment contracts is very similar to a regular purchase agreement. Oftentimes, an assignment contract has the addition of a few extra words. The assigns part allows you to lock up a property with a purchase contract and pass along that property to someone else if you so desire. Though the extra words may not take up much ink, they provide a tremendous amount of flexibility to you as an investor.

Lease Agreements

Even if you’ve never purchased property before, chances are you’re familiar with lease agreements or have signed one in the past. As one might surmise, these real estate contracts outline an agreement between the lessor (the property owner or landlord) and a lessee (the tenant). In this real estate contract, the landlord agrees to offer the property to the tenant at a specific monthly rate. Agreements of this kind specify important considerations such as the rent amount, security deposit, how utilities are handled. It should go without saying lease agreements that are intended to avoid future issues between lessor and lessee and protect both parties if something unforeseen happens.

Power of Attorney

Though not used exclusively in a real estate setting, power of attorney documents are a form of real estate contract and can be exceedingly useful in certain situations. This is because if you’re not able to sign a real estate contract, whether because you’re out of the country or because of some mental incapacity, this document gives another party the power to sign on your behalf. This type of real estate contract can be quite helpful if you’re the owner of rental properties or you are caring for an elderly parent, or relative, who may encounter a situation when they can’t sign their own real estate contract. The principal or party who has given permission to act on their behalf can have someone sign in their stead. The principal maybe someone who is:
• Hospitalized or has any illness restricting them from being present to sign the real estate contract
• Not physically present in the area
• The owner of several different investment properties
• Mentally disabled
• Elderly and may not be able to sign the contract themselves

Null and Void Contract

A null and void contract is a formal agreement that is illegitimate and, thus, unenforceable from the moment it was created. Such a contract never comes into effect because it misses essential elements of a properly designed legal contract or violates contract laws altogether.

Elements of a Valid Contract

To be legally binding and enforceable under state and federal laws, a contract must include the following elements:
• Offer and acceptance: The terms of the offer made by one party must be described in details. The other party must accept those terms freely.
• Legal object and capacity of parties: The agreement’s subject matter must be legal, and both parties must consent to the terms willingly, be over the age of consent, and be in sound mind at the time of signing the agreement.
• Consideration: A price or value exchanged must be clearly stated in the contract and describe how both parties benefit from the agreement.

Difference Between “Void” and “Voidable” Contracts

A void contract is illegitimate and unenforceable from the start because of the way it was drafted. Such a contract typically states impossible or illegal terms, consideration, or object; involves a party that was not of sound mind or was under the age of consent when signing the documents; or violates the rights of a party. A contract can be void if it is not enforceable as it was originally written due to changes in laws and regulations that took place after the contract was signed but before it was fulfilled. While agreements made with a minor are void, the consent of the parent or guardian makes it enforceable. A fulfilled contract can be deemed void because all the obligations and terms are satisfied and nothing is left to enforce.

A voidable contract, on the other hand, is valid and may be enforceable when both parties agree to proceed. In such case, the agreement is actionable, but the circumstances of the agreement are questionable. While one party is bound to the terms of the contract, the other party may oppose the contract for legal reasons. A contract may be voidable in the following situations:
• A party was forced or threatened to sign the contract.
• A party was under the influence.
• A party was not mentally competent.
• The terms of the contract were violated.
• Mistakes were made by both parties.
• The contract is illegal.
• The information and facts were misrepresented or withheld.
Tips for Executing a Contract Correctly
• Take your time to read through the whole document.
• Make sure that the terms of the offer are clearly stated.
• Make sure you understand all parts of the contract. Clarify any details that you don’t comprehend fully.
• Put your contract in writing to have proof of the agreement in case of any future disputes.
• Pay attention to the acceptance details, such as specific dates and deadlines.
• Confirm the other party’s identity before entering into an agreement.

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Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
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