Steven Gillman

Offer To Purchase - Clauses You Need

Making an offer to purchase a home or other real estate? Don't forget these important clauses.

An offer to purchase is a legally binding document, not just a casual negotiating tool. The moment the seller of the real estate signs your offer, you are obligated to live up to its exact language. Since you can write the offer how you want to, why not include the clauses that smart buyers use to protect themselves? You can also use language that will save you money.

The Offer To Purchase - Important Clauses

Inspection contingency clauses. You want something like this in every offer to purchase: "Offer is contingent upon a home inspection and buyer's approval of the results; inspection to be done at buyer's expense within ten days." You can ask the real estate agent for help with the specific wording. This clause gives you the right to have an inspection done. If anything negative is found, you could refuse to "approve" of the results, and so get your deposit back. Alternately, you could renegotiate a lower price.

Earnest money clause. Real estate agents will tell you that a certain amount is necessary for a deposit, but the decision is yours. A small earnest money deposit may be taken seriously, if you include a clause like this: "$100 earnest money deposit, to be increased to $2,000 upon acceptance of this offer." Or you can have it increased "when all contingencies are met." The reason? Suppose there's an argument about you backing out because the inspector found foundation damage. You won't have your money tied up while this is being resolved.

Right to assign clause. This one is primarily for investors. Suppose your partner isn't there to sign the offer, or you want to "flip" the deal to another investor, or you may need to involve a partner for purposes of funding the deal. You need a clause in the offer to purchase that covers this. Including the words "and/or assigns" after your name on the offer is usually sufficient, but ask the real estate agent what the local custom or language is. This allows you to add another buyer or assign the whole contract to another.

Closing cost clauses. You can specify that the seller pays for the closing fee, the title insurance, the recording fees, and even the points on your loan. For many sellers the price is the most important thing, and they don't care too about the details. What if they don't want to pay the costs? You at least gave yourself some negotiating points. Now get something for dropping each of the costs you included. This could include a reduced interest rate if the seller is financing part of your purchase.

Basic financing contingency clause. If the loan doesn't come through, and you can't buy the home, you'll lose your deposit, unless you have something like this in the agreement: "Subject to buyer obtaining a firm commitment for suitable financing within ten days." Actually, the language should usually specify what "suitable" means in terms of interest rate and such.

Spousal approval clause. This clause can be as simple as "Subject to a walk through inspection and approval of home by buyer's wife (or husband or partner - state their name) within two days." If your wife says no to the deal within two days, you can back out and get your deposit back. For the seller to agree to this one you need to keep the time frame as short as you can.

Some of the above clauses are normal and acceptable to all, while others are likely to annoy the real estate agent. That's okay. The seller has the right to say no to your offer in any case, and you have the right to use these clauses to protect yourself in your offer to purchase.

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