The copious home sale contract

home sale contract
Home buying process (infographic from floridarealtors.org)

If you’ve recently bought or sold a home in Montgomery County MD, you probably recognized that the home sale contract was quite lengthy.  In fact, depending on the situation and additional addenda, a contract can be fifty-plus pages. It seems as if that the home sale contract gets fatter as every year passes. It’s no wonder why I am often asked “Why are home sale contracts long winded?”

Why is our home sale contract so long?  Our local home sale contract has a number of required addenda and disclosures.  There is a simple reason for this, but let’s look at the foundation and need for the contract.

It’s important to mention that property sale contracts around the country are not the same.  Every jurisdiction has their own criteria for a home sale contract.  A recent client who relocated from New Jersey shared their home sale contract, which was a fraction of the size of our local contract.  Likewise, a colleague asserted the same about the property contracts in Arizona, where he was licensed for a number of years.

Property sale contracts go back into antiquity.  Most likely, ancient contracts formed a basis of ancient record keeping.  These ancient contracts were also “promises” that were enforced in some manner that was keeping with the time.  For example, The History Blog (thehistoryblog.com) tells the account of the Mogao Caves which are located in the Gobi Desert and date back to the fourth century.  One of the caves held a cache of financial documents from medieval China, including property sale contracts and records!

According to the legal historian A. W. B. Simpson, modern English contract law has roots in the middle ages (A History of the Common Law of Contract: The Rise of the Action of Assumpsit; Clarendon Press; 1987).  The contract was founded in the concept of “assumpsit,” which was the basis for resolving “broken promises.”  Assumpsit allowed individuals to bring claims of broken promises to local courts.  Although the practice was traced back to the thirteenth century, court hearings were routine in the sixteenth century.  This model became the basis for enforcing a private contract.

It wasn’t until 1677 when the English Parliament enacted “An Act for the Prevention of Frauds and Perjuries,” known today as the Statute of Frauds.  According to Russell Decker, the Parliament enacted the law that required contracts to be written, because parties obliged by a contract were not allowed to provide testimony in court (The Repeal of the Statute of Frauds in England; American Business Law Journal; 1973; 11:1 p55).  The written contract was the “witness” to a promise.  However, most of the Statute of Frauds was mostly repealed in England in 1954.

The Statute of Frauds is still alive and well in the US and the basis for the real estate contract in Maryland.  Statute of Frauds is a subtitle of the Real Property Act of the Code of Maryland.  Section 5-104 Executory Contracts states: “No action may be brought on any contract for the sale or disposition of land or of any interest in or concerning land unless the contract on which the action is brought, or some memorandum or note of it, is in writing and signed by the party to be charged or some other person lawfully authorized by him.”

So ok, home sale contracts need to be in writing, but why are our contracts lengthy?  The reason is because many of the addenda and disclosures are generated because of statutory requirements to provide specific information in a contract of sale. Besides  the expected list of notices and disclosures (such as property condition), there is a compendium of additional required notices and disclosures that is found in Code of Maryland  Miscellaneous subtitle of the Real Property Act section 14-117 Contracts for Sale of Property.  Additionally, jurisdictions around the state include additional addenda and notices for home sales within the respective county and/or locality.  Of course, Montgomery County has added a number of disclosures and notices (such as the Utility Cost and Usage History Form and the Real Property Estimated Tax).

Make sure your agent is knowledgeable about the jurisdiction in which you are buying or selling.  As a buyer, you need to make sure you receive all the relevant notices and disclosures.  As a seller, you may incur a fine for non-disclosure of certain notices.

Original published at https://dankrell.com/blog/2018/09/20/copious-home-sale-contract/(opens in a new tab)

By Dan Krell.          Copyright © 2018.

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Real estate contract know-how

real estate contract
Do you know real estate? (infographic from househunt.com)

When I started selling homes almost sixteen years ago, a typical real estate contract (with addenda) may have been about twenty pages.  My mentor used to pine about the two-page contracts he used when he started in real estate.  I used to think he was exaggerating, but I found that he was actually telling the truth.  It is true that real estate contracts have evolved and become quite lengthy through the years. Today, our local Realtor contract with addenda can exceed sixty pages!  As much as it may sound like a chore, you should take the time to read and understand the real estate contract you are asked to sign.

In today’s world of convenience and digital everything, electronically signing your real estate contract may seem like a time saver.  Real estate apps make it all too easy for your agent to email you a boiler plate contract and ask you to click the mouse to sign it.  But do you really know what you’re signing?  More importantly, does your real estate agent know what they are asking you to sign?

A typical Realtor contract is a legally binding contract once it is ratified and delivered to all parties.  That means there are potential consequences for not doing what you agreed to do.  Don’t solely rely on your agent for an explanation of the contract, they may not fully understand it or its nuances.  As pedestrian as it sounds, read through the contract before you sign it.  Reading the contract will inform you of the terms and conditions to which you’re agreeing, which include your obligations and contingency timelines.  Reading the contract will also alert you to any errors and you need clarified.

The terms and conditions of your real estate contract are more than just the sale price and closing date.  Both the home buyer and seller have obligations in our local Realtor contract.  A few of the many obligations included in the terms are: settlement, obtaining financing, delivering a “clean” title, and providing access to the property.

Are there contingencies?  Typical real estate contract contingencies include financing, appraisal, and various inspections.  However, other contingencies may be included too, such as the buyer’s home sale, the seller finding a home, third party approval, or even reviewing the county or city master plan.  The contingencies you choose may vary depending on your situation.  Contingencies are time limited.  The contract describes how each contingency is met as well as timelines for completion and description of giving notice and responses.

Although the Realtor contract has become increasingly lengthy, it has become more standardized (at least in my area).  In the past, local agents needed to know or find out the contract and addenda requirements for multiple counties and cities, much of the time falling short.  Today, the Realtor contracts and addenda we use in Maryland are mostly consistent with each other, making it easier to put together and understand.

Make sure you are comfortable with the real estate contract you are signing.  You should ask your agent to take the time to sit with you and review the contract before you sign it.  If you’re a first-time home buyer or seller, getting the one-on-one review will allow you to ask questions about your obligations and the process.  Even if you have bought or sold a home in the past, reviewing the contract with your agent will make you realize how times have changed.  Since the contract is a devise, always consult with an attorney for legal advice.

Copyright© Dan Krell
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Disclaimer. This article is not intended to provide nor should it be relied upon for legal and financial advice. Readers should not rely solely on the information contained herein, as it does not purport to be comprehensive or render specific advice. Readers should consult with an attorney regarding local real estate laws and customs as they vary by state and jurisdiction. Using this article without permission is a violation of copyright laws.

Sorting Through the Paperwork

by Dan Krell
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Have you read your purchase contract or listing agreement? Many people won’t read the documents thoroughly, if they read them at all, and rely on their Realtor’s explanation to help them understand the legal and binding contract to which they are entering. Unfortunately, there is a chance that your Realtor may not understand the documents either and may have given you misleading information.

What was once a simple two page purchase contract is now an often confusing and seemingly endless forty to fifty pages of clauses and addendums. The contract of yesteryear may have been easier to read, however it was not very specific and was written in favor of the home seller. Today’s real estate contract is very specific to many aspects of the transaction, discussing the terms of the agreement as well as contingencies, notices and disclosures.

To make matters more confusing, there are two contracts in use in our area. The MAR contract is provided by the Maryland Association of Realtors and the Regional Contract is offered by the Greater Capital Association of realtors. Up until recently, there were major differences between the two contracts. Attempts for parity have been helpful, however differences continue. You should consult with your Realtor to determine which contract would benefit your situation.

As hard as it may be to read through the contract and understand its terminology, can you depend on your Realtor to explain it to you correctly? Both contracts along with addendums undergo constant change requiring Realtors to re-familiarize themselves with the documents. Because of this, it is common for even a seasoned Realtor to get tripped up.

When presented with a listing agreement and/or a purchase contract, your Realtor should explicitly explain the meaning of each clause so as you understand it. It is a good idea to even consult an attorney.

Today’s real estate contract specifies the rights and responsibilities of each party. Additionally, the contract defines default, discusses recourse and hiring an attorney. The MAR contract requires you to attempt meditation prior to going to court.

Additionally, you may find that there are many additional disclosures that are part of the contract. Contrary to belief, these addenda are not filler paper; many of these disclosures ensure you understand your rights as a home buyer or home seller.

For example, many home buyers don’t know that they have the right to review condo and HOA docs. You have seven days to review condo docs and five days to review HOA docs. If you find that there is anything in the docs that is not acceptable, you can declare the contract null and void.

Why should you understand the contract? Believe it or not the real estate contract survives even after settlement. This is an important concept as it is mistakenly thought that once settlement occurs there is no recourse. Disputes can arise after settlement if the home seller decides to take items they were supposed to leave in the home, or if there were misrepresentations in property condition.

A real estate contract is not to be taken lightly as there are consequences to any breach of this contract. Make sure you understand your rights and any responsibilities, and if in doubt-consult an attorney.

This column is not intended to provide nor should it be relied upon for legal and financial advice. This article was originally published in the Montgomery County Sentinel the week of April 9, 2007. Copyright © 2007 Dan Krell.