Chapter 11 - Real Estate Contracts

A contract is an agreement between the parties to do or not to do something. If it is in writing and contains all the valid essentials, it is

enforceable

In real estate there are a number of contracts including

the listing contract, buyer's agency contract, sales contract, Option contract, leases and property management contracts

Because of the complexity of legal words, a real estate broker should only fill in the blanks on the contracts of listing agreements, buyer's agency agreements, sale and purchase contracts, and option contracts. Generally, these are prepared in advance by

the broker's own attorney or by the Board of Realtors attorney

The Statute of Frauds is based on an old English law, which was written to protect consumers from

fraud

The Statue of Frauds encourages that all contracts

be in writing to be enforceable

All leases for more than one year must be

in writing to be enforceable

Enforceable means that

the courts will hear the case

The Statute of Limitation provides

a time frame, which in court cases, must be filed on certain offenses. If the Statute of Limitations runs out, the case cannot be heard

What are the certain essentials that must be present to make a contract valid?

legally competent parties, consideration. legality of Object

When individuals who are making a contract are of sound mind, of legal age, and working without menace, duress, or undue influence, this is referred to as

legally Competent parties

There must be a genuine "meeting of the minds" in the contract by both parties to the contract. This refers to

offer and acceptance of a contract

A contract does not exist until

all parties have accepted and been notified of the acceptance

Consideration is something that is legally sufficient for which is being exchanged. It can be

money, love and affection, or other valuable goods, which the parties equate to the same level as that being bargained for. Generally in real estate, it is either dollars or love and affection in family cases

The purpose of a contract is to sell, list, or rent in a legal fashion. A contract between parties, for dealing in stolen properties, would not be valid. A contract for the sale of a property between competent parties, for consideration with offer and acc

Legality of Object

An offer to purchase is not a contract. When an offer or counter offer is accepted and the seller and or buyer is notified of the acceptance, the offer becomes a

valid contract

Some contracts may have legal effect, others do not. The difference lies in

whether a contract is valid, void, voidable, enforceable, or unenforceable

Binding and enforceable on all parties. All the essentials of a contract are in place. This refers to being

valid

When one of the essential elements is missing or is
corrupted, having no legal effect, it is referred to as

voidable

Valid on the surface but may be rejected by one of the parties due to an error or misinformation. This refers to being

voidable

A voidable contract requires court action on the part of the injured party to

correct the problem

When property is sold by a person under duress who comes back later and claims duress. The court may void the contract if the person can prove that he was under duress. This refers to being a

voidable contract

With regard to an avoidable contract. The contract appears valid and enforceable on its face but is subject to rescission by one of the parties who acted under a

disability

When all of the essentials of a contract are present and the contract is in writing. This is a contract that can be heard by the court, and is referred to as an

enforceable contract

A contract may be valid between two parties, such as a handshake agreement, that all the essential elements are in place but the contract is not in writing. The courts will not hear the case and the courts cannot force performance of the contract by eithe

unenforceable

To be valid and enforceable, a contract must contain

the 4 essentials

Part of the consideration for a parcel of land is paid in an earnest money deposit. It is not all of the consideration, it is only a good faith deposit to insure the seller that

the buyer will honor his promises and complete the sale

What is a good faith deposit to insure the seller that the buyer will honor his promises and complete the sale of a property?

earnest money

Equitable Title becomes very important if

the house were to burn in between the time the house was contracted for and when it actually closed. Most real estate contracts call for the seller to either rebuild the home the way it was with the insurance money or rescind the contract and give the buy

When a title actually changes hands, after the delivery and acceptance phase of the deed, the title is referred to as

Actual title. All the property rights are now in the hands of the buyer unless otherwise stated in the deed

Types of Contracts include

Bilateral, Unilateral, Expressed, Implied, Executory, Executed, Formal Contract and Informal Contract

A Bilateral is a

two way" contract where each party to the contract promises to do something

A Unilateral is a

one way contract in the case of an Option, the seller promises to sell if the buyer wants to buy the property at a later date. The buyer does not promise he will buy the property but he pays the seller Option money for the right to make that decision when

An oral contract, which contains specific terms and conditions refers to an

Expressed Contract. The purchase price or the date of loan approval, are examples. Almost all real estate contracts are expressed and put into writing to be enforceable

A contract which occurs by the actions of the parties, in other words, by the way people behave, is an

Implied Contract

Executory is when

a contract is in process and something remains to be completed such as the issuing of the deed, or an contingency that has not been met

When a contract is finished and all terms have been met and satisfied, it is referred to as an

Executed Contract

A Formal Contract was originally written under seal, meaning the wax seal of the parties. This has evolved into

the written, signed contract by the parties, valid and enforceable

An oral contract is usually not enforceable and is referred to as an

informal Contract

In the process of obtaining a contract, certain negotiations must take place. In an offer to purchase contract, the buyer offers his best price for the property and the seller agrees to the price or

sends the offer back to the buyer with a counter offer

Whoever is making the offer is the

Offeror

Whoever is receiving the offer is the

Offeree

The buyer, which is the Offeror gives an offer to the

seller, which is the Offeree

An offer is not a contract until it has been accepted by

both parties

An offer on a property can be terminated if

an offer is withdrawn by the offeror

One way that a contract can be terminated is by

performance

Performance is when the contract is

completed

Mutual rescission is when both parties agree to

cancel the contract

An example of Impossibility of Performance is when

an earthquake hits the property and both parties agree to rescind the contract

Bankruptcy of either party or Eminent Domain of the property refers to

operation of law

A breach of the contract is when

one or the other or both of the parties have broken the promises made. If one has breached and the other has not, the injured party may sue the other. If both have breached the contract, a new contract may be written or both parties may rescind the contra

A breach of contract means

a failure to perform the promises as agreed

A Suit for Cancellation is done to

rescind the contract. The court restores the parties to their original position before the contract

Because no two pieces of property are alike, the buyer wants this house, at this time and asks a court to enforce the contract. This refers to

suit for specific performance

With regard to contracts, because a party may have expenses to the contract, such as an appraisal or moving, the injured party asks the court to make the other party pay for damages. This refers to a

suit for damages

With regard to enforcing a contract, out of pocket expenses such as appraisals and moving are called

compensatory damages

With regard to enforcing a contract, the seller, if he is the wronged party, may wish to accept liquidated damages, which are an amount of monies, usually the earnest money, in payment. If he accepts liquidated damages, he may not sue for

specific performance

When a third person takes the place of one of the original people in the contract. All the rights and responsibilities become his. This refers to an

assignment of a contract

The giver of an assignment is the Assignor, the receiver is the

assignee

Novation is a

change in the original terms, such as an extension of time for closing or loan commitment. All other terms of the contract remain the same

Contingency means

conditions or terms yet to be performed. A financing contingency means the buyer will buy the house on the condition that he receives the loan applied for. All contingencies must be met before a contract can be executed

A seller agrees to an offer exactly as it was written. No changes are made to the offer, and it is signed by the seller as it was written. It becomes a contract after the buyer is notified of the acceptance. This refers to

Mirror Image

Counter offer, also called qualified acceptance, is an attempt by the seller to

change the terms proposed by the buyer on the initial offer. Usually it is the price that is changed or the date of possession. The buyer can also counter offer a seller's counter offer

Time is of the Essence means

the promises must be performed with a certain time frame or the party will be in breach of contract. Typical time frames to be used are for closing date, possession of the property, or loan approval

Anything in writing, like a contract, takes precedence over oral or verbal agreements. This refers to the

Parol Evidence Rule

A listing contract is

the employment contract between the broker and the seller

The listing agreement sets forth

the terms under which a broker is employed as an agent to find a buyer for the owner's real estate. It outlines the terms under which the seller will owe the broker a commission for his services. Generally, commissions are paid on the sale price, not on t

In Florida, a listing agreement is allowed to be written or oral, but the majority of contracts are

in writing

Florida law also provides that a copy of a listing contract be given to the seller within

24 hours of execution

One item that must be included in any written listing agreement include

a definite expiration date

An automatic renewal clause for extension of the listing is

forbidden under Florida Law

If a broker is a single agent to the seller, he owes the seller

fiduciary responsibility

If the broker is employed as a transaction broker, the seller is a

customer and the broker has no fiduciary responsibilities

An Open listing is when

the seller retains the right to hire any number of brokers to sell his property. Whoever provides the seller with a ready, willing, and able purchaser is entitled to a commission. If the seller sells the property without the broker, he pays no commission.

An Exclusive or Exclusive Agency listing is when

only one broker is allowed to act on behalf of the principal but if the owner sells the property himself, no commission is paid to the broker. If the broker sells the property, he will be entitled to a commission. This is a Unilateral Contract

In a Exclusive Right to Sell Contract listing, the listing broker is always entitled to a

commission regardless of who procures the buyer

Most brokers belong to a

Multiple Listing Service, also called MLS

The Multiple Listing Service (MLS) is a database of

all the listings of brokers who belong to the service. The brokers have agreed to split the commission with a Selling Broker. The listing broker must make the commission split or compensation that will be paid to the selling broker

A Net listing is

a type of listing that is illegal in most states and strongly discouraged in Florida by regulatory agencies

A Net listing states that

the seller will receive a certain amount of money from the sale. Any amount over the predetermined sales price guaranteed to the seller will be paid as commission to the broker

A Net listing can lead to

inaccurate pricing and price gouging by brokers. This type of listing specifies that the money over a set sales price is given to the broker

When a buyer agrees to purchase, and is able to pay, the buyer meets the criteria known as a

ready, willing, and able purchaser

Ready, Willing, and Able Buyer =

a Commission

With regard to terminating a listing agreement because of death, all the sellers would have to die or the broker. If this is a business entity, the business Never

dies

A Buyer's Agency agreement is

an employment contract between the broker and the buyer. It spells out the terms of employment, of how a broker will find a home for the buyer and exactly who will pay the commission

Like all contracts, the Buyer's Agency Contract must be

in writing and contain certain elements to be enforceable

A sales contract is always a

Bilateral because it contains promises from both the seller and buyer

Vendor gives to the Vendee a

sales contract

Items that must be contained in a sales contract is the

names of the parties

An offer is given by the offeror to the offeree. An offer becomes a contract when there is

offer and acceptance and notification

Earnest Money is

part of the consideration and is given by the purchaser to the seller as an indication of the purchaser's good faith

One of the disclosures that State and Federal laws require to be made to the buyer prior to closing is the

Radon Gas disclosure

The seller of any home built before 1978 is required to sign a "Lead disclosure form" and the seller must disclose the presence of any known lead based paint in the home. This refers to the

Lead Based Paint disclosure

If the property is in a flood plain, this must be disclosed to the buyer and if flood insurance will be required.
This refers to the

Flood Insurance disclosure

Any seller who has been cited for building code violations must disclose this to the buyer. This refers to the

Building Code Violation disclosure

An Option is

a contract that gives the Optionee the right to purchase or lease real estate in the future

An Option is sometimes used when large discount chains buy the right to purchase a property in the future, for example,

on a busy corner, but want time to do research to see if the property meets the needs of that type of business

The seller of the Option is the Optionor. The buyer of the Option is the Optionee. This type of contract is a

Unilateral Contract in that the seller must sell the property if requested by the buyer, but the buyer need not buy the property

Like all contracts, an Option must contain a

legal description of the property

Optionor gives to the Optionee

an Option

An Installment Land Contract is a

Bilateral Contract, with both parties performing, but the time frame is different than a regular sales contract

In an installment land contract, the purchaser buys the property but does not receive

complete title until the end of a time period. (For example, 5 to 10 years). The purchaser pays a certain amount of money each year and the seller retains the title until the final payment is made

In an installment land contract, the advantage to the sale for the seller is that

he does not receive a large sum of money at one time, for which he may be taxed. Especially in large pieces of ground the amount can be very large and the seller may wish to spread the payment over 5 - 10 years in order to reduce the tax burden. The buyer

In an installment land contract, the disadvantages are easy to see. The buyer does not get

complete title until the final payment is paid so the seller is free to burden the property with a number of items until that time. A buyer may find that the property has been burdened with a mechanic's lien or that the oil rights have been sold while the

In regard to land contracts, the seller has to count on the buyer being able to complete the sale at the time agreed upon. Unless the seller specifically requires that no assignment can be made, the buyer could

sell his interest in the property to another without the seller's consent

A Installment Land Contract is also called a

Contract for Deed

When using a Contract for Deed, also called Installment Contract, it is best to

use the services of an attorney to make sure that all the needs of the buyer and seller are met

The rule of Caveat Emptor, meaning,

Let the Buyer Beware, still holds some value in Florida as it does in most states

The "as is" provision does not release the seller from

giving important information to the buyer relating to real property

All licensees should check the property carefully and make every effort to disclose

material defects to the buyer

An offer on a property can be terminated if

the time for an offer has passed and the offer is dead

An offer on a property can be terminated by

the death or insanity of either party

An offer on a property can be terminated if

a counter offer is given, making the first offer dead

An offer on a property can be terminated if

the offer is accepted, making it a contract instead of an offer

An offer on a property can be terminated if

the offer is rejected completely

An offer on a property can be terminated if

the property in question is destroyed

One way to terminate a listing agreement is by

destruction of the property or a change in use by outside forces, meaning, the property has been zoned commercial

The giver of an assignment is the

assignor

The receiver of an assignment is the

assignee

One way to terminate a listing agreement is by

fulfillment of the purpose of the listing, meaning the property sold

One way to terminate a listing agreement is by

transfer of title by operation of law, for instance, the seller is bankrupt

One way to terminate a listing agreement is by the

expiration of the time as stated in the agreement, meaning too late

One way to terminate a listing agreement is by

mutual consent, meaning, let's quit, this was a bad idea!

One way to terminate a listing agreement is by

renunciation by the broker, meaning, I quit!

One way to terminate a listing agreement is by

death or incapacity of either the seller or the broker

One way to terminate a listing agreement is by

revocation by the seller, meaning, You're fired

In most listing contracts, the broker, or his cooperating broker, must set into play a series of events leading to the

procuring of a buyer

A buyer must agree to purchase a property, and be able to pay. A buyer that meets this criteria is known as a

ready, willing, and able purchaser

If a buyer cannot obtain a loan, cannot complete the purchase, or refuses to close, then the buyer is not willing to make the purchase, therefore, the buyer is Not a

ready, willing, and able purchaser

Under the situation where the buyer is not a ready, willing, and able purchaser, the broker is Not entitled to a

real estate commission, If, on the other hand, the seller refuses to close and the buyer is ready to close, the broker is probably entitled to a commission

Voidable Contract disabilities include such disabilities as being a

minor

If a minor contracts to buy a property, the contract can be voided by the minor because of lack of sufficient age. If, however, the minor elects to enforce the contract, the contract is

valid and the other party cannot assert the minor's lack of age as a defense

Example of an Implied Contract

When a passenger gets in a taxi, he implies by his actions, he will pay the driver of the taxi when he gets to his location. Many times, this type of contract is less than desirable in real estate since it will be a case of an agent implying by his behavi

Equitable Title is

the interest a buyer has in a property between the time of acceptance (notification) of the contract and the actual closing

Legal or Actual title is

the interest a buyer has in a property when the transaction closes

It is very hard to prove in a court that a seller hired a broker if the listing is not

in writing

One of the elements that a Buyer's Agency contract must contain is the

names of the parties

One of the elements that a Buyer's Agency contract must contain is the

definite beginning and expiration date

One of the elements that a Buyer's Agency contract must contain is the

terms and conditions of employment

One of the elements that a Buyer's Agency contract must contain is the

general description of the property sought

One of the elements that a Buyer's Agency contract must contain is the

retainer or compensation

One of the elements that a Buyer's Agency contract must contain is the

type of broker buyer relationship

One of the elements that a Buyer's Agency Contract must contain is the

signatures of the parties

A contract for dealing in stolen properties is voidable, since

one of the elements in contracts is a for a valid legal purpose

Example of Statue of Limitations

If a homeowner builds a fence and no one complains about the violation of the building restrictions, the court may rule that the time has passed for a case to be brought and will instruct that the fence will stay in place

One of the disclosures that State and Federal laws require to be made to the buyer prior to closing is the

Energy Efficiency brochure

One of the disclosures that State and Federal laws require to be made to the buyer prior to closing is the

Lead based Paint disclosure

One of the disclosures that State and Federal laws require to be made to the buyer prior to closing is the

Homeowner Association disclosure

One of the disclosures that State and Federal laws require to be made to the buyer prior to closing is the

Flood Insurance disclosure

One of the disclosures that State and Federal laws require to be made to the buyer prior to closing is the

Building Code Violation disclosure

One of the disclosures that State and Federal laws require to be made to the buyer prior to closing is the

Radon Gas Law in Florida

One of the disclosures that State and Federal laws require to be made to the buyer prior to closing is the

Energy Efficiency brochure in Florida

One of the disclosures that State and Federal laws require to be made to the buyer prior to closing is the

Lead Based Paint Disclosure law

One of the disclosures that State and Federal laws require to be made to the buyer prior to closing include

questions and answers about Flood Insurance for real estate agents

One of the disclosures that State and Federal laws require to be made to the buyer prior to closing is the

Florida Building Code

One of the disclosures that State and Federal laws require to be made to the buyer prior to closing is the

Homeowner Association Disclosure

Items that must be contained in a sales contract is the

seller and buyer

Items that must be contained in a sales contract is the

legal description of the property or street address or both

Items that must be contained in a sales contract is the

consideration given

Items that must be contained in a sales contract is the

purchase price

Items that must be contained in a sales contract is the

financing or cash terms

Items that must be contained in a sales contract is the

type of deed to be used. A General Warranty deed is presumed unless otherwise stated

Items that must be contained in a sales contract is the

estate to be acquired, fee simple unless otherwise noted

Items that must be contained in a sales contract is the

terms of expenses and statement of prorations

Items that must be contained in a sales contract include

any personal property to be included in the sale

Items that must be contained in a sales contract is the

date, time, and place of closing

Items that must be contained in a sales contract is the

when possession will occur

Items that must be contained in a sales contract is the

signatures of the parties

One way that a contract can be terminated is by

mutual rescission

One way that a contract can be terminated is by the

impossibility of performance

One way that a contract can be terminated is by

operation of law

One way that a contract can be terminated is by

breach

One item that must be included in any written listing agreement is the

proper identification of the property

One item that must be included in any written listing agreement is the

price, terms, and conditions

One item that must be included in any written listing agreement is the

fee or commission to be paid

One item that must be included in any written listing agreement is the

signature of the owner

Real estate contracts are the legal agreements that

underlie the transfer and financing of real estate, as well as the real estate brokerage business

Sales contract, lease contracts, and Option agreements are used to

transfer real estate interests from one party to another

Mortgage contracts and promissory agreements are part of

financing real estate

Mortgage contracts and promissory agreements are part of

financing real estate

Listing and representation contracts establish

client relationships and provide for compensation

A contract is

an agreement between two or more parties who, in a "meeting of the minds," have pledged to perform or refrain from performing some act

A valid contract is one that is

legally enforceable by virtue of meeting certain requirements of contract law. If a contract does not meet the requirements, it is not valid and the parties to it cannot resort to a court of law to enforce its provisions

Note that a contract is not a legal form or a prescribed set of words in a document, but rather the intangible agreement that was made by

the meeting of the minds of the parties to the contract

In terms of validity and enforceability, one way a court may construe the legal status of a contract is

valid

In terms of validity and enforceability, one way a court may construe the legal status of a contract is

valid but unenforceable

In terms of validity and enforceability, one way a court may construe the legal status of a contract is

void

In terms of validity and enforceability, one way a court may construe the legal status of a contract is

voidable

A valid contract is one which meets

the legal requirements for validity

A valid contract that is in writing is enforceable within a

statutory time period

A valid contract that is made orally is also generally enforceable within a statutory period, with

certain exceptions

Valid but unenforceable

State laws declare that some contracts are enforceable only if they are in writing. These laws apply in particular to the transfer of interests in real estate. Thus, while an oral contract may meet the tests for validity, if it falls under the laws requir

An oral long term lease and an oral real estate sales contract are examples of contracts that may be valid but not enforceable. Note that such contracts, if valid, remain so even though not enforceable. This means that

if the parties fully execute and perform the contract, the outcome may
not be altered

A Void Contract is an agreement that

does not meet the tests for validity, and therefore is no contract at all. If a contract is void, neither party can enforce it

A contract that does not include consideration is

void

A contract to extort money from a business is

void

Void Contracts and instruments are also described as

null and void

A voidable contract is one which initially appears to be valid, but is subject to rescission by a party to the contract who

is deemed to have acted under some kind of disability. Only the party who claims the disability may rescind the legal effect of the contract

A party who was the victim of duress, coercion, or fraud in creation of a contract, and can prove it, may

disaffirm the contract. However, the disaffirmation must occur within a legal time frame for the act of rescission to be valid. Similarly, if the party who has cause to disaffirm the contract elects instead to perform it, the contract is no longer voidabl

A voidable contract differs from a Void Contract in that

the Void Contract does not require an act of disaffirmation to render it unenforceable

The parties to a contract must have

the capacity to contract, and there must be at least two such parties

With regard to capacity, the owner of a tenancy for life cannot deed his interest to himself in the form of a fee simple, as this would involve only

one party

Capacity to contract is determined by three factors, they are

legal age, mental competency, and legitimate authority

Depending on state law, a contract involving a minor as a party may be either

void or voidable

Depending on state law, a contract involving a minor as a party may be either

void or voidable

If the law allows a minor to contract, the contract will generally be

voidable and the minor can disaffirm the contract

To be mentally competent, a party must have sufficient understanding of

the import and consequences of a contract

Competency is separate and distinct from

sanity

Incompetent parties, or parties of unsound mind may not enter into

enforceable contracts

The incompetency of a party may be ruled by

a court of law. In some areas, convicted felons may be deemed incompetent, depending on the nature of the crime

During a period of one's incompetency, a court may

appoint a guardian who may act on the incompetent party's behalf with court approval

If a contracting party is representing another person or business entity, the representative must have

the legal authority to contract

If representing another person, the party must have a

bona fide power of attorney

If a contracting party is representing a Corporation, the person must have the appropriate power and approval to act, such as would be conferred in a

duly executed resolution of the Board of Directors

If a contracting entity is a General Partnership, any partner may validly contract for

the partnership

Mutual consent, also known as offer and acceptance and meeting of the minds, requires that

a contract involve a clear and definite offer and an intentional, unqualified acceptance of the offer. In effect, the parties must agree to the terms without equivocation. A court may nullify a contract where the acceptance of terms by either party was pa

A contract must contain a two way exchange of valuable consideration as compensation for performance by the other party. The exchange of considerations must be two way. The contract is not valid or enforceable if

just one party provides consideration

Valuable consideration can be something of tangible value, such as money or something a party promises to do or not do. For example,

a home builder may promise to build a house for a party as consideration for receiving money from the home buyer

Valuable consideration can be something of tangible value, such as money or something a party promises to do or not do. For example,

a landowner may agree not to sell a property as consideration for a developer's Option money

Valuable consideration can be something intangible that a party must give up, such as a

homeowner's occupancy of the house in exchange for rent. In effect, consideration is the price one party must pay to obtain performance from the other party

Valuable consideration may be contrasted with good consideration or love and affection which does not qualify as

consideration in a valid contract

Good consideration is something of questionable value, such as

a child's love for her mother

Good consideration disqualifies a contract because

while one's love or affection is certainly valuable to the other party, it is not something that is specifically offered in exchange for something else

Good consideration can serve as a nominal consideration in transferring a real property interest as a

gift

Good consideration can serve as a nominal consideration in

transferring a real property interest as a gift. In some cases, what is promised as valuable consideration must also be deemed to be sufficient consideration

Good consideration can serve as a nominal consideration in transferring a real property interest as a gift. However, grossly insufficient consideration, such as $50,000 for a $2 million property, may invalidate a contract on the grounds that the agreement

violation of good faith bargaining

The content, promise, or intent of a contract must be lawful. A contract that proposes an illegal act is

void

The parties must create the contract in good faith as a

free and voluntary act

A contract is thus voidable if one party acted under

duress, coercion, fraud, or misrepresentation

If a property seller induces a buyer to purchase a house based on assurances that the roof is new, the buyer may rescind the agreement if

the roof turns out to be twenty years old and leaky

A contract that conveys an interest in real estate must

contain a legal description of the property

A contract that conveys an interest in real estate must

be signed by one or more of the parties

A contract that conveys an interest in real estate must be

signed by one or more of the parties. However, a lease contract that has a term of one year or less is an exception. Such leases do not have to be in writing to be enforceable

Certain contracts that fail to meet the validity requirements are voidable if

a damaged party takes appropriate action

The statute of limitations restricts the time period for which an injured party in a contract has the right to

rescind or disaffirm the contract. A party to a voidable contract must act within the statutory period

The statute of frauds requires that

certain contracts must be in writing to be enforceable

Real estate contracts that convey an interest in real property fall in the category of the statute of frauds, with the exception that

a lease of one year's duration or less may be oral

All contracts, except a lease of one year's duration or less, to buy, sell, lease interest, and exchange in real property must be

in writing to be enforceable

Listing agreements in most states must be

in writing

The statute of frauds concerns

the enforceability of a contract, not its validity

The statute of frauds concerns the enforceability of a contract, not its

validity

Once the parties to a valid oral contract have executed and performed it, even if the contract was unenforceable, a party cannot use the Statute of Frauds to

rescind the contract

A broker and a seller have an oral agreement. Following the terms of the agreement, the broker finds a buyer, and the seller pays the commission. They have now executed the contract, and the seller can not later force the broker to return the commission b

the statute of frauds

The mutual consent required for a valid contract is reached through the process of

offer and acceptance

The offeror proposes contract terms in an offer to the

offeree

The offeror proposes contract terms in an offer to the

offeree

If an offeree accepts all terms of a contract without amendment, the offer becomes a

contract

The exact point at which the offer becomes a contract is when the offeree gives the offeror

notice of the acceptance

An offer expresses the offeror's intention to enter into a contract with an offeree to

perform the terms of the agreement in exchange for the offeree's performance

In a real estate sale or lease contract, the offer must clearly contain all intended terms of the contract in writing and be

communicated to the offeree

If an offer contains an expiration date and the phrase "time is of the essence," the offer expires at

exactly the time specified

In the absence of a stated time period, the offeree has

a reasonable time to accept an offer

An offer gives the offeree the power of accepting. For an acceptance to be valid, the offeree must manifestly and unequivocally accept all terms of the offer without change, and so indicate by signing the offer, preferably with a date of signing. The acce

communicated to the offeror

If communication of acceptance of a contract is by mail, the offer is considered to be communicated as soon as

it is placed in the mail

By changing any of the terms of an offer, the offeree creates a

counteroffer, and the original offer is void. At this point, the offeree becomes the offeror, and the new offeree gains the right of acceptance. If accepted, the counteroffer becomes a valid contract provided all other requirements are met

A seller changes the expiration date of a buyer's offer by one day, signs the offer and returns it to the buyer. The single amendment extinguishes the buyer's offer, and the buyer is no longer bound by any agreement. The seller's amended offer is a

counteroffer which now gives the buyer the right of acceptance. If the buyer accepts the counteroffer, the counteroffer becomes a binding contract

An offer may be revoked, or withdrawn, at any time before the offeree has communicated acceptance. The revocation extinguishes the

offer and the offeree's right to accept it

A buyer has offered to purchase a house for the listed price. Three hours later, a family death radically changes the buyer's plans. She immediately calls the seller and revokes the offer, stating she is no longer interested in the house. Since the seller

revoke the offer over the period of the Option

One action or circumstance that can terminate an offer is

acceptance. The offeree accepts the offer, converting it to a contract

One action or circumstance that can terminate an offer is

rejection. The offeree rejects the offer

One action or circumstance that can terminate an offer is

revocation. The offeror withdraws the offer before acceptance

One action or circumstance that can terminate an offer is

lapse of time. The offer expires

One action or circumstance that can terminate an offer is a

counteroffer. The offeree changes the offer

One action or circumstance that can terminate an offer is

death or insanity of either party

A real estate contract, that is not a personal contract for services, can be assigned to another party unless

the terms of the agreement specifically prohibit assignment

Listing agreements are not assignable, since they are

personal service agreements between agent and principal

Listing agreements are not assignable, since they are

personal service agreements between agent and principal

State laws define the extent to which real estate brokers and agents may legally prepare real estate contracts. Such laws, referred to as Broker Lawyer Accords, also define

what types of contracts brokers and agents may prepare

In some states, brokers and agents may not draft contracts, but they may use

standard promulgated forms and complete the blanks in the form

As a rule, a broker or agent who completes real estate contracts is engaging in the unauthorized practice of law unless

the broker is a party to the agreement, such as in a listing agreement or sales contract

Brokers and agents may not complete leases, mortgages, contracts for deed, or promissory notes to which

they are not a party

Agents must be fully aware of what they are legally allowed to do and not do in preparing and interpreting

contracts for clients

In addition to practicing law without a license, agents expose themselves to lawsuits from clients who relied on a contract as being

legally acceptable

A contract may be in writing or it may be an

oral (parol) contract

An oral contract is also called a

parol contract

Certain oral contracts are valid and enforceable, others are not enforceable, even if valid, because

most states require listing agreements, sales contracts, and leases exceeding one year to be in writing to be enforceable

An express contract is one in which

all the terms and covenants of the agreement have been manifestly stated and agreed to by all parties, whether verbally or in writing

An Implied Contract is

an unstated or unintentional agreement that may be deemed to exist when the actions of any of the parties suggest the existence of an agreement

A common example of an Implied Contract is an

implied agency agreement

In implied agency, an agent who does not have a contract with a buyer performs acts on the buyer's behalf, such as

negotiating a price that is less than the listing price. In so doing, the agent has possibly created an Implied Contract with the buyer, albeit unintended. If the buyer compensates the agent for the negotiating efforts, the existence of an implied agency

A Bilateral Contract is one in which

both parties promise to perform their respective parts of an agreement in exchange for performance by the other party

An example of a Bilateral Contract in an exclusive listing

the broker promises to exercise due diligence in the efforts to sell a property, and the seller promises to compensate the broker when and if the property sells

In a Unilateral Contract, only one party promises to

do something, provided the other party does something. The latter party is not obligated to perform any act, but the promising party must fulfill the promise if the other party chooses to perform

An Option is

an example of a Unilateral Contract. In an Option to Buy, the party offering the Option (Optionor) promises to sell a property. if the Optionee decides to exercise the Option. While the potential buyer does not have to buy, the owner must sell if the Opti

An Executed Contract is one that

has been fully performed and fulfilled, neither party bears any further obligation

A completed and expired lease contract is

an Executed Contract, the landlord may re-possess the premises and the tenant has no further obligation to pay rent

An Executory Contract is one in which

performance is yet to be completed

A sales contract prior to closing is

executory. While the parties have agreed to buy and sell, the buyer has yet to pay the seller and the seller has yet to deed the property to the buyer

Termination of a contract is also called

cancellation and discharge

Termination of a contract, also called cancellation and discharge, may occur by

performance. A contract terminates when fully performed by the parties. It may also terminate for partial performance, if the parties agree

Termination of a contract, also called cancellation and discharge, may occur by

sufficient performance. If a court determines a party has sufficiently performed the contract, even though not to the full extent of every provision

Infeasibility refers to when

an otherwise valid contract can be canceled if it is not possible to perform. Certain personal services contracts, for example, depend on the unique capabilities of one person which cannot be substituted by someone else. If such a person dies or is suffic

Termination of a contract, also called cancellation and discharge, may occur by

mutual agreement. Parties to a contract can agree to terminate, or renounce, the contract. If the parties wish to create a new contract to replace the cancelled contract, they must comply with the validity requirements for the new contract. Such substitut

Parties to a contract can agree to terminate or renounce the contract. If the parties wish to create a new contract to replace the cancelled contract, they must comply with the validity requirements for the new contract. Such substitution is called

novation

Termination of a contract, also called cancellation and discharge, may occur by a

cooling period rescission. Cooling Period rescission is the act of nullifying a contract. In many states, parties to certain contracts are allowed a statutory amount of time after entering into a contract, or Cooling Period, to rescind the contract withou

Example of Termination of a contract by Cooling Period Rescission

Consider the unsuspecting buyer of a lot in a new resort development. Such buyers are often the targets of hard sell tactics which lead to a completed sales contract and a deposit. The statutory Cooling Period gives the buyer an opportunity to reconsider

Termination of a contract, also called cancellation and discharge, may occur by

revocation. revocation is cancellation of the contract by one party without the consent of the other

Termination of a contract by Revocation A seller may revoke a listing to take the property off the market. While all parties have the power to revoke, they may not have a defensible right. In the absence of justifiable grounds, a revocation may not reliev

a seller who revokes a listing without grounds may be required to pay a commission if the broker found a buyer, or reimburse the broker's marketing expenses if no buyer was found

Abandonment occurs when

parties fail to perform contract obligations. This situation may allow the parties to cancel the contract

If a contract contains an expiration provision and date, the contract automatically expires on

the deadline

If a contract is void, it terminates without the need for

disaffirmation

A breach of contract is

a failure to perform according to the terms of the agreement

A breach of contract is also called

default. A breach of contract gives the damaged party the right to take legal action

A damaged party from a breached contract may elect to take an action of

rescission

A damaged party from a breached contract may elect to take an action of

forfeiture

A damaged party from a breached contract may elect to file a

suit for damages

A damaged party from a breached contract may elect to file a

suit for specific performance

A damaged party may rescind the contract. This cancels the

contract and returns the parties to their pre-contract condition, including the refunding of any monies already transferred

A forfeiture requires the breaching party to give up something, according to the terms of the contract. For example,

a buyer who defaults on a sales contract may have to forfeit the earnest money deposit

A damaged party of a breached contract may sue for money damages in civil court. The suit must be initiated within the time period allowed by the statute of limitations. When a contract states the total amount due to a damaged party in the event of a brea

liquidated damages

If a contract does not specify the amount, a damaged party of a breached contract may sue in court for

unliquidated damages

A Suit for Specific Performance is an attempt to

force the defaulting party to comply with the terms of the contract

Specific Performance suits occur when

it is difficult to identify damages because of the unique circumstances of the real property in question. The most common instance is a defaulted sale or lease contract where the buyer or seller wants the court to compel the defaulting party to go through

A real estate sales contract is a

binding and enforceable agreement wherein a buyer, the vendee, agrees to buy an identified parcel of real estate, and a seller, the vendor, agrees to sell it under certain terms and conditions. It is the document that is at the center of the transaction

In a real estate sales contract, the seller is called the

vendor

In a real estate sales contract, the buyer is called the

vendee

The conventional transfer of real estate ownership takes place in three stages. They are as follows

first, there is the negotiating period where buyers and sellers exchange offers in an effort to agree to all transfer terms that will appear in the sales contract.
second, when both parties have accepted all terms, the offer becomes a binding sales contra

Other names for a sales contract are

agreement of sale, contract for purchase, contract of purchase and sale, and earnest money contract

A sale contract is executory when

the signatories have yet to perform their respective obligations and promises. Upon closing, the sale contract is fully performed and no longer exists as a binding agreement

All owners of the property should sign the sale contract. If the sellers are married, both spouses should sign to ensure that both spouses release homestead, dower, and curtesy rights to the buyer at closing. Failure to do so does not invalidate the contr

encumbered title and legal disputes

To be enforceable, a sale contract must

be validly created (mutual consent, consideration, legal purpose, competent parties, voluntary act)

To be enforceable, a sale contract must

identify the principal parties

To be enforceable, a sale contract must

clearly identify the property, preferably by a legal description

To be enforceable, a sale contract must

contain a purchase price

To be enforceable, a sale contract must

be signed by the principal parties

Written verses oral form of contract

A contract for the sale of real estate is enforceable only if it is in writing. A buyer or seller cannot sue to force the other to comply with an oral contract for sale, even if the contract is valid

Either party to a sale transaction can assign the sale contract to another party, subject to the

provisions and conditions contained in the agreement

A broker or agent may assist a buyer and seller in completing an offer to purchase, provided the broker

represents the client faithfully and does not charge a separate fee for the assistance

A contract of sale is created by

full and unequivocal acceptance of an offer

A sale contract gives the buyer an interest in the property that is called

Equitable Title, or ownership in equity. If the seller defaults and the buyer can show good faith performance, the buyer can sue for specific performance, that is, to compel the seller to transfer legal title upon payment of the contract price

The buyer's earnest money deposit fulfills the consideration requirements for a

valid sale contract

A sale contract often contains contingencies. A contingency is a

condition that must be met before the contract is enforceable

To avoid problems in a sales contract, the statement of a contingency should be

explicit and clear

To avoid problems in a sales contract, the statement of a contingency should have

an expiration date

To avoid problems in a sales contract, the statement of a contingency should

expressly require diligence in the effort to fulfill the requirement

A contingency that is too broad, vague, or excessive in duration may invalidate the entire contract on the grounds of

insufficiency of mutual agreement

A sales contract is

bilateral, since both parties promise to perform. As a result, either party may default by failing to perform

If a buyer fails to perform under the terms of a sales contract, the breach entitles the seller to

legal recourse for damages. In most cases, the contract itself stipulates the seller's remedies

If a seller defaults in a contract, the buyer may sue for

specific performance, damages, or cancellation

Sale contracts can vary. One of the varieties is

Residential Contract of Sale

Sale contracts can vary. One of the varieties is

Commercial Contract of Sale

Sale contracts can vary. One of the varieties is

Foreclosure Contract of Sale

Sale contracts can vary. One of the varieties is

Contract of Sale for New Construction

Sale contracts can vary. One of the varieties is

Contract of Sale for Land

Sale contracts can vary. One of the varieties is

Exchange Agreement

A Residential Contract of Sale is the type with which

a licensee should first become familiar

A typical residential sale contract contains provisions of

parties, consideration, and property. One or more clauses will identify the parties, the property, and the basic consideration, which is the sale of the property in return for a purchase price

There must be at least two parties to a sales contract. One cannot

convey property to oneself

All parties in a sale contract must be

identified, be of legal age, and have the capacity to contract

A property clause also identifies

fixtures and personal property included in the sale, unless expressly excluded. Items commonly construed as fixtures are included in the sale. Similarly, items commonly considered personal property are not included unless expressly stated in the contract

A typical residential sale contract contains provisions of a

legal description. A legal description must be sufficient for a competent surveyor to identify the property

A typical residential sale contract contains provisions of

price and terms. A clause states the final price and details how the purchase will occur. Of particular interest to the seller is the buyer's down payment, since the greater the buyer's equity, the more likely the buyer will be able to secure financing. I

It is important for all parties to verify that the buyer's earnest money deposit, down payment, loan proceeds, and other promised funds together equal the

purchase price stated in the contract

A typical residential sale contract contains provisions of

loan approval. A financing contingency clause states under what conditions the buyer can cancel the contract without default and receive a refund of the earnest money. If the buyer cannot secure the stated financing by the deadline, the parties may agree

A typical residential sale contract contains provisions of earnest money deposit. A clause specifies how the buyer will pay the earnest money. It may allow the buyer to pay it in installments. Such an Option enables a buyer to hold on to the property brie

a buyer who wants to buy a house makes an initial deposit of $200, to be followed in twenty four hours with an additional $2,000. The sale contract includes the seller's acknowledgment of receipt of the deposit

A typical residential sale contract contains provisions of

escrow. An escrow clause provides for the custody and disbursement of the earnest money deposit, and releases the escrow agent from certain liabilities in the performance of escrow duties

A typical residential sale contract contains provisions of

closing and possession dates. The contract states when title will transfer, as well as when the buyer will take physical possession. Customarily, possession occurs on the date when the deed is recorded, unless the buyer has agreed to other arrangements

The closing clause in a contract generally describes

what must take place at closing to avoid default. A seller must provide clear and marketable title. A buyer must produce purchase funds. Failure to complete any pre-closing requirements stated in the sale contract is default and grounds for the aggrieved

A typical residential sale contract contains provisions of

conveyed interest type of deed. One or more provisions will state what type of deed the seller will use to convey the property, and what conditions the deed will be subject to. Among common "subject to" conditions are easements, association memberships, e

A typical residential sale contract contains provisions of

title evidence. The seller covenants to produce the best possible evidence of property ownership. This is commonly in the form of title insurance

A typical residential sale contract contains provisions of

closing costs. The contract identifies which closing costs each party will pay. Customarily, the seller pays title and property related costs, and the buyer pays financing related costs. Annual costs such as taxes and insurance are prorated between the pa

A typical residential sale contract contains provisions of

damage and destruction. A clause stipulates the obligations of the parties in case the property is damaged or destroyed. The parties may negotiate alternatives, including seller's obligation to repair, buyer's obligation to buy if repairs are made, and th

A typical residential sale contract contains provisions of

default. A default clause identifies remedies for default. Generally, a buyer may sue for damages, specific performance, or cancellation. A seller may do likewise or claim the earnest money as liquidated damages

A typical residential sale contract contains provisions of

broker's representation and commission. The broker discloses the applicable agency relationships in the transaction and names the party who must pay the brokerage commission

A typical residential sale contract contains provisions of

seller's representations. The seller warrants that there will be no liens on the property that cannot be settled and extinguished at closing. In addition, the seller warrants that all representations are true, and if found otherwise, the buyer may cancel

The residential property condition disclosure is

the seller's written summary of the property's condition at the time of contracting for sale. The disclosure is entered on state approved forms

State legislation requires owners of previously occupied single family homes and buildings containing 1 to 4 dwelling units to provide

the disclosure to prospective buyers if they are selling, exchanging, or Optioning their property. Some exceptions and exemptions apply. When required, the disclosure must be transmitted to the prospective buyer no later than when the buyer makes an offer

A typical residential sale contract contains the provision of

right of rescission. Sellers who fail to complete and deliver the property condition disclosure statement to buyers in a timely fashion effectively give the buyer a subsequent right under certain conditions to rescind the sale contract and re-claim their

A typical residential sale contract contains provisions of

agent's responsibility. The residential property re-seller must comply with the property condition disclosure requirement whether an agent is employed in the transaction or not. If an agent is involved in the transaction, the agent must disclose any and a

A typical form requires the seller to affirm whether or not problems exist in any of the listed features and systems of the property. In denying that a problem exists, the seller claims to have no knowledge of a defect. If a defect does in fact exist, the

intentional misrepresentation

A third possible response to a property condition question is that of No Representation. Here, the seller makes no claim of knowledge as to whether a problem exists. With this answer, the seller is no longer held liable for a disclosure of any kind relati

acknowledge receipt and knowledge of the property condition disclosures, along with other provisions set forth on the form

A sales contract may contain numerous clauses. One of the common provisions is

inspections. The parties agree to inspections and remedial action based on findings

A sales contract may contain numerous clauses. One of the common provisions is

owner's association disclosure. The seller discloses existence of an association and the obligations it imposes

A sales contract may contain numerous clauses. One of the common provisions is a

survey provision. The parties agree to a survey to satisfy financing requirements

A sales contract may contain numerous clauses. One of the common provisions is

environmental hazards. The seller notifies the buyer that there may be hazards that could affect the use and value of the property

A sales contract may contain numerous clauses. One of the common provisions is

compliance with laws. The seller warrants that there are no undisclosed building code or zoning violations

A sales contract may contain numerous clauses. One of the common provisions is

Due on Sale clause. The parties state their understanding that loans that survive the closing may be called due by the lender. Both parties agree to hold the other party harmless for the consequences of an acceleration

A sales contract may contain numerous clauses. One of the common provisions is

seller financing disclosure. The parties agree to comply with applicable state and local disclosure laws concerning seller financing

A sale contract may contain numerous additional clauses. One of the common provisions is

rental property and or tenants rights. The buyer acknowledges the rights of tenants following closing

A sale contract may contain numerous additional clauses. One of the common provisions is

FHA or VA financing condition. A contingency allows the buyer to cancel the contract if the price exceeds FHA or VA estimates of the property's value

A sale contract may contain numerous additional clauses. One of the common provisions is

flood plain (flood insurance). Seller discloses that the property is in a flood plain and that it must carry flood insurance if the buyer uses certain lenders for financing

A sale contract may contain numerous additional clauses. One of the common provisions is

condominium assessments. Seller discloses assessments the owner must pay

A sales contract may contain numerous clauses. One of the common provisions is

foreign seller withholding. The seller acknowledges that the buyer must withhold 10% of the purchase price at closing if the seller is a foreign person or entity and forward the withheld amount to the Internal Revenue Service. Certain limitations and exem

A sale contract may contain numerous additional clauses. One of the common provisions is

tax deferred exchange. For income properties only, buyer and seller disclose their intentions to participate in an exchange and agree to cooperate in completing necessary procedures

A sale contract may contain numerous additional clauses. One of the common provisions is

merger of agreements. Buyer and seller state that there are no other agreements between the parties that are not expressed in the contract

A sale contract may contain numerous additional clauses. One of the common provisions is

notices. The parties agree on how they will give notice to each other and what they will consider to be delivery of notice

A sale contract may contain numerous additional clauses. One of the common provisions is

time is of the essence. The parties agree that they can amend dates and deadlines only if they both give written approval

A sale contract may contain numerous additional clauses. One of the common provisions is

fax transmission. The parties agree to accept facsimile transmission of the offer, provided receipt is acknowledged and original copies of the contract are subsequently delivered

A sale contract may contain numerous additional clauses. One of the common provisions is

survival. The parties continue to be liable for the truthfulness of representations and warranties after the closing

A sale contract may contain numerous additional clauses. One of the common provisions is

dispute resolution. The parties agree to resolve disputes through arbitration as opposed to court proceedings

A sale contract may contain numerous additional clauses. One of the common provisions is

addenda to the sale contract. Addenda to the sale contract become binding components of the overall agreement. The most common addendum is the seller's property condition disclosure

Examples of some addenda are

agency disclosure, asbestos and or hazardous materials, liquidated damages, radon disclosure, flood plain disclosure, and tenant's lease

An Option to Buy is an enforceable contract in which

a potential seller, the Optionor, grants a potential buyer, the Optionee, the right to purchase a property before a stated time for a stated price and terms. In exchange for the right of Option, the Optionee pays the Optionor valuable consideration

An Option to Buy is an enforceable contract in which

a potential seller, the Optionor, grants a potential buyer, the Optionee, the right to purchase a property before a stated time for a stated price and terms. In exchange for the right of Option, the Optionee pays the Optionor valuable consideration

An Option to Buy is an enforceable contract in which a potential seller, the Optionor, grants a potential buyer, the Optionee, the right to

purchase a property before a stated time for a stated price and terms. In exchange for the right of Option, the Optionee pays the Optionor valuable consideration

Example of Option to Buy

A buyer wants to purchase a property for $150,000, but needs to sell a boat to raise the down payment. The boat will take two or three months to sell. To accommodate the buyer, the seller offers the buyer an Option to purchase the property at any time bef

An Option to Buy places the Optionee under no obligation to

purchase the property. However, the seller must perform under the terms of the contract if the buyer exercises the Option

An Option is a

unilateral agreement

Exercise of an Option to Buy creates a

bilateral sale contract where both parties are bound to perform

An unused Option terminates at the

expiration date

An Optionee can use an Option to

prevent the sale of a property to another party while seeking to raise funds for the purchase

A renter with a lease Option to Buy can accumulate down payment funds while paying rent to the landlord. For example,

an owner may lease a condominium to a tenant with an Option to Buy. If the tenant takes the Option, the landlord agrees to apply $100 of the monthly rent paid prior to the Option date toward the purchase price. The tenant pays the landlord the nominal sum

Options can facilitate commercial property acquisition. The Option period gives a buyer

time to investigate zoning, space planning, building permits, environmental impacts, and other feasibility issues prior to the purchase without losing the property to another party in the meantime

To be valid and enforceable, an Option to Buy must

include actual, non-refundable consideration

To be valid and enforceable, an Option to Buy must

require the Optionee to pay a specific consideration that is separate from the purchase price. The consideration cannot be refunded if the Option is not exercised. If the Option is exercised, the consideration may be applied to the purchase price. If the

To be valid and enforceable, an Option to Buy must

include price and terms of the sale. The price and terms of the potential transaction must be clearly expressed and cannot change over the Option period. It is customary practice for the parties to complete and attach a sale contract to the Option as sati

To be valid and enforceable, an Option to Buy must have an

expiration date

To be valid and enforceable, an Option to Buy must

be in writing

Since a potential transfer of real estate is involved, most states Statutes of Fraud require an option to be

in writing

To be valid and enforceable, an Option to Buy must

include a legal description

To be valid and enforceable, an Option to Buy must

meet general contract validity requirements

The basics of an Option to Buy include

competent parties, the Optionor's promise to perform, and the Optionor's signature. Note that it is not necessary for the Optionee to sign the Option

It is common for an Option to Buy contract to include provisions covering

forfeiture terms. A clause provides that the Optionor is entitled to the consideration if the Option term expires

It is common for an Option to Buy contract to include provisions covering

property and title condition warranties. The Optionor warrants that the property will be maintained in a certain condition, and that title will be marketable and insurable

It is common for an Option to Buy contract to include provisions covering

how Option consideration will be credited. A clause states how the Optionor will apply the Option consideration toward the purchase price

With regard to Equitable interest

In an Option, the Optionee enjoys an equitable interest in the property because the Option creates the right to obtain legal title. However, the Option does not in itself convey an interest in real property, only a right to do something governed by contra

An Option should be recorded, because

the equitable interest it creates can affect the marketability of title

An Option to Buy is assignable unless

the contract expressly prohibits assignment

A Contract for Deed is also called a

land contract

A Contract for Deed is also called a

installment sale

A Contract for Deed is also called a

Conditional Sales Contract

A Contract for Deed is also called a

agreement for deed

A Contract for Deed is a bilateral agreement between retains legal title and the vendee acquires Equitable Title. The vendee takes possession of the property, makes stipulated payments of principal and interest to the vendor, and otherwise fulfills obliga

a seller, the vendor, and a buyer, the vendee, in which the vendor defers receipt of some or all of the purchase price of a property over a specified period of time. During the period, the vendor

Like an Option, a Contract for Deed offers a means for a marginally qualified buyer to acquire property. In essence, the seller acts as a lender, allowing the buyer to

take possession and pay off the purchase price over time. A buyer may thus avoid conventional down payment and income requirements imposed by institutional lenders. During the contract period, the buyer can work to raise the necessary cash to complete the

A Contract for Deed serves two primary purposes for a seller, they are

first, it facilitates a sale that might otherwise be impossible.
second, it may give the seller certain tax benefits. Since the seller is not liable for capital gains tax until the purchase price is received, the installment sale lowers the seller's tax l

Vendor's rights and obligations regarding a Contract for Deed. During the contract period, the seller may

mortgage the property

Vendor's rights and obligations regarding a Contract for Deed. During the contract period, the seller may

sell or assign whatever interests he or she owns in the property to another party

Vendor's rights and obligations regarding a Contract for Deed. During the contract period, the seller may

incur judgment liens against the property

In a Contract for Deed, the vendor is bound to

the obligations imposed by the Contract for Deed. In particular, the vendor may not breach the obligation to convey legal title to the vendee upon receipt of the total purchase price. In addition, the vendor remains liable for underlying mortgage loans

During a Contract for Deed contract period, the buyer (vendee) may

occupy, use, enjoy, and profit from the property, subject to the provisions of the written agreement. The vendee must make periodic payments of principal and interest and maintain the property. In addition, a vendee may have to pay property taxes and haza

Like other conveyance contracts, a Contract for Deed instrument identifies

the principal parties

Like other conveyance contracts, a Contract for Deed instrument identifies

the property's legal description

Like other conveyance contracts, a Contract for Deed instrument identifies

consideration, specifically what the parties promise to do

Like other conveyance contracts, a Contract for Deed instrument identifies

the terms of the sale

Like other conveyance contracts, a Contract for Deed instrument identifies

obligations for property maintenance

Like other conveyance contracts, a Contract for Deed instrument identifies

default and remedies

Like other conveyance contracts, a Contract for Deed instrument identifies

signatures and acknowledgment

A Contract for Deed specifies

the vendee's payments, payment deadlines, when the balance of the purchase price is due, and how the property may be used

In a Contract for Deed, if the seller defaults, such as by failing to deliver the deed, the buyer may sue for

specific performance or for cancellation of the agreement and damages

States differ in the remedies they prescribe for the seller in case of buyer default. Some states consider the default a breach of contract that may be remedied by

cancellation, retention of monies received, and eviction. Others provide foreclosure proceedings as a remedy

Many areas have no standardized Contract for Deed or any form sanctioned by associations and agencies. Therefore, this kind of conveyance presents certain

pitfalls for buyer and seller

In some states, a breach of the Contract for Deed is remedied under local contract law rather than

foreclosure law

In a Contract for Deed the buyer may not have the protections of a

redemption period or other buyer protection laws which accompany formal foreclosure proceedings. The vendor might sue the vendee for breach of contract for the slightest infraction of the contract terms

In a Contract for Deed, a danger for the vendee is that the vendor has the power and the right to

encumber the property in ways that may not be desirable for the buyer

Contract for deed

The seller could place a home equity loan on the property, then fail to make periodic payments. The bank could then foreclose on the vendor, thus jeopardizing the vendee's eventual purchase. For the seller, the principal danger is that the buyer acquires

To minimize risk, principal parties in a Contract for Deed should

use an attorney to draft the agreement

To minimize risk, principal parties in a Contract for Deed should

adopt the standard forms, if available

To minimize risk, principal parties in a Contract for Deed should

become familiar with how the contract will be enforced

To minimize risk, principal parties in a Contract for Deed should

utilize professional escrow and title services

To minimize risk, principal parties in a Contract for Deed should

record the transaction properly

To minimize risk, principal parties in a Contract for Deed should

be prepared for the possible effect on existing financing

An Exclusive Right to Sell contract provides

the most protection to the broker

An Exclusive Right to Sell listing is a

bilateral agreement

The enforcement of voidable contracts is limited by

statutes of limitation. Certain other contracts which are valid may not be enforceable due to the statute of frauds

A good example of the Bilateral Contract is a sales contract because

the seller promises to sell and the buyer promises to buy

Punitive damages are

damages that are punishment for wrong doing

In a Multiple Listing Service (MLS), the relationship that the selling broker has with the seller must be identified, for example,

single agent, transaction broker, etc.

Reasonable Time is

the time the court believes is sufficient to complete the contract

If a contracting entity is a Limited Partnership, only general partners may be

parties to a contract

A voidable contract can be cancelled by

operation of law or by rescission

It is advisable, and legally required in most states, for a broker to use a standard contract form promulgated by state agencies or real estate boards, as such forms contain generally accepted language. This relieves the broker of

the dangers of creating new contract language, which can be construed as a practice of law for which the broker is not licensed

An earnest money escrow provides

potential compensation for damages to the seller if the buyer fails to perform. The amount of the deposit varies according to local custom

A sales contract provides the escrow instructions for

handling and disbursing escrow funds

Earnest money is placed in a

third party trust account or escrow

A licensed escrow agent employed by a title company, financial institution, or brokerage company usually manages the

earnest money escrow

An individual broker may serve as the

escrow agent

An escrow holder acts as an

impartial fiduciary for buyer and seller

If a buyer performs under the sale contract, the earnest money escrow deposit is applied to the

purchase price

Strict rules govern the handling of earnest money deposits, particularly if

a broker is the escrow agent

State laws direct brokers when to

deposit earnest money escrow, how to account for them, and how to keep them separate from the broker's own funds

A party's failure to meet a contingency does not constitute default, but rather entitles the parties to

cancel the contract

Sales contracts, however, are assignable, because they involve

the purchase of real property rather than a personal service

Like all contracts, an Option must contain the

name of the Optionor (seller)

Like all contracts, an Option must have a

recitation of consideration, the purchase price, and must have some reference to dates, either specific times or Reasonable Time

Like all contracts,the Optionor must

sell the property if desired by the Optionee, but if the Optionee does not wish to purchase the property, he may release the Optionor from the sale. Usually, a least part of the consideration goes to the seller, whether the Option is exercised or not, wit

The most common contingency concerns financing. A buyer makes an offer contingent upon securing financing for the property under certain terms on or before a certain date. If unable to secure the specified loan commitment by the deadline, the buyer may

cancel the contract and recover the deposit

In a contract, an appropriate and timely loan commitment eliminates a

contingency, and the buyer must proceed with the purchase

It is possible for both buyers and sellers to abuse contingencies in order to

leave themselves a convenient way to cancel without defaulting

Offer and acceptance of a contract may come from either buyer or seller. The offeree must accept the offer without

making any changes whatsoever

A change in a offer of a contract terminates the offer and creates a

new offer or counteroffer

An offeror of a contract may revoke an offer for

any reason prior to communication of acceptance by the offeree

If a buyer fails to perform under the terms of a sales contract, the usual remedy is

forfeiture of the buyer's deposit as liquidated damages, provided the deposit is not grossly in excess of the seller's actual damages

If a buyer fails to perform under the terms of a sales contract, it is customary to provide for

the seller and broker to share the liquidated damages. The broker may not, however, receive liquidated damages in excess of what the commission would have been on the full listing price

If a contract does not provide for liquidated damages, the seller may sue for

damages, cancellation, or specific performance

A contract that is Void cannot

be enforced by either party., The law treats a Void Contract as if it had never been formed. A contract will be considered void, for example, when it requires one party to perform an act that is impossible or illegal

A Voidable Contract is a

valid contract and can be enforced. Usually only one party is bound to the contract terms in a voidable contract. The unbound party is allowed to cancel the contract, which makes the contract void

The main difference between a Void and Voidable Contract is that

a void contract cannot be performed under the law, while a voidable contract can still be performed, although the unbound party to the contract can choose to void it before the other party performs

Competency is

the ability to do something successfully or efficiently

Sanity refers to

the soundness, rationality, and healthiness of the human mind, as opposed to

Insanity is

the state of being seriously mentally ill