For sale By Owner and Realtor purchase contracts: I have often been asked whether there is a difference and the answer is YES. State law does not mandate the use of a specific purchase contract for the purpose of buying or selling real estate. There are numerous boards of Realtors throughout the state of Ohio – all of whom have had legal counsel prepare purchase contracts and supporting documents for use by their members, and they all differ in format and terms. Numerous real estate brokerages have retained legal counsel to prepare purchase contracts for their agents to use, and in fact, the Ohio Association of Realtors spent 3 years collaborating and creating a purchase contract for use statewide by its members. They all vary in detail, length, and terms and they are all legal. Additionally, For Sale By Owner purchase contracts are readily available online and are offered by most title companies. A seller or buyer can always retain legal counsel to prepare a purchase agreement custom-tailored to their specific needs.
Earlier this year when the Ohio Association of Realtors released the OAR purchase contract for use statewide, I chose to post it on the Ohio Broker Direct resource page for all to review. It was well written, provided the benefit of having on e contract to service the entire state, and my having posted it provided buyers and sellers the opportunity to review it,compare it to other contracts including For sale By Owner and Realtor purchase contracts that they were considering, and ask questions prior to negotiating an offer.
Last week legal counsel for the OAR sent an email requesting that I remove the OAR purchase contract from my website as it was “for member use only”. To be clear—I am an OAR member and I have authorization to use it, however, I respectfully removed it per their written request. I have decided to take this opportunity to offer a comparative analysis of some of the finer points in various contracts that are being utilized in the marketplace today. As always, I invite past, current, and future clients and customers to call me to discuss the various attributes of each and share their experiences and opinions. While only licensed attorneys can legally draft a contract, real estate agents, brokers, and Realtors utilize them as well as prepare addendums and counter offers with various modifications per client and customer requests.
When I became a licensed real estate agent in 1983, the brokerage I worked for utilized a 2-page purchase agreement. 40 years later we have purchase agreements often 14 pages in length, crafted in legalese offering terms that often confuse agents as well as the buyer and seller. For Sale By Owner purchase contracts such as one currently posted on our website, courtesy of Associates Title Inc., are often 1-2 page documents. They are simplistic by design and do not incorporate extensive legalese. The buyer and seller can revise the document to incorporate additional language as agreed by both parties.
The OAR, boards of Realtors, and real estate brokerages incorporate extensive legalese into their contracts which are often designed to protect all parties therein, however, one of the boards incorporates the following language to protect the agent and buyer should they fail in their due diligence to follow the timeline incorporated therein. This example is directly copied from one of the board contracts:
“3.3 Demand for Financing Evidence: If Seller does not receive Buyer’s written notice or documents as required in paragraphs 3.1, 3.2(a), 3.2(b)(i), or 3.2(c) (the “Financing Evidence”), the Seller may, at any time until 7 calendar days before the closing date set forth in paragraph 15.1, notify the Buyer or Buyer’s Broker in writing that Seller has not received the required Financing Evidence, specifying which type of Financing Evidence is overdue (a “Demand for Financing Evidence”). If Seller receives the required Financing Evidence within 3 calendar days after delivery of Seller’s Demand for Financing Evidence, the parties shall proceed with the transaction. If Seller does not receive the required Financing Evidence within 3 calendar days after delivery of the Demand for Financing Evidence, Seller may, at any time thereafter until the Financing Evidence has been received, terminate this contract by delivering written notice of termination to the Buyer or Buyer’s Broker, at which time the Earnest Money Deposit shall be released to the Buyer. Seller’s election to terminate pursuant to this paragraph 3.3 is Seller’s sole legal remedy for Buyer’s failure to deliver the Financing Evidence, acts as a bar to any additional legal or equitable claims that Seller may have against the Buyer, and constitutes Seller’s consent to the release of the Earnest Money Deposit. Failure of the Seller to timely deliver the written Demand for Financing Evidence constitutes a waiver of Seller’s right to terminate pursuant to this provision.”
HOW MIGHT THIS IMPACT YOU? In summary – while the buyer and seller have stated a specific timeline for the Buyer to provide financing evidence -this paragraph allows the buyer additional time to provide it well after the deadline. This clause removes the seller’s right to immediately terminate the contract without recourse due to the buyer’s failure to perform in accordance with the original terms delineated therein. Having personally had clients leverage and terminate contracts due to the buyers’ lack of due diligence and move forward with a secondary (often better) offer, I must acknowledge that find the incorporation of this language to offer additional value to the buyer, rather than treating both parties equally as such a delay may cause the seller additional expense. The Seller has the right to counter any terms delineated in the purchase offer itself, and I have had clients specifically request the counter offer to include the removal of this paragraph stating Seller counters with the following: Section 3.3 to be removed from the contract in its entirety, buyer and seller shall adhere to the specific timelines delineated in the contract and should the buyer fail to comply with one of the timelines delineated therein the seller may terminate the contract without recourse. I have seen contracts that have been countered by a seller’s legal counsel redacting said language as well. In short—anything is negotiable including, but not limited to the terms utilized in the purchase offer itself.
Purchase contracts and title insurance: While the payment of the title insurance is to be negotiated and agreed to between the buyer and seller, certain boards of Realtor contracts and For Sale By Owner agreements incorporate language requiring the Seller to pay the title insurance policy in its entirety. If a title insurance policy is negotiated into the purchase agreement it can be paid for by the Buyer, Seller, or split as mutually agreed between the parties to the contract. Additionally, FSBO, board of Realtor contracts, and customized real estate brokerage agreements may include language mandating an ALTA title insurance policy rather than a standard policy, when an ALTA policy may not even be necessary based on the location and type of property being sold.
Selling your home on your own without the assistance of a traditional service Real Estate Brokerage will require both commitment and due diligence for which you may be rewarded by saving thousands of dollars in commissions. Maximizing marketing exposure is key. I have been in this industry for 4 decades, have SOLD well over a BILLION DOLLARS in Real Estate & Saved Sellers Millions of Dollars in Real Estate commissions. Please contact our team to learn how the For Sale By Owner Ohio Flat Fee MLS Listing options at Ohio Broker Direct will enhance your marketing exposure to ensure a more expeditious sale, yielding a higher price with better terms that suit your specific needs. Reach out to us directly, visit our blog page, or sign up for our newsletter to receive the latest information to ensure you have the knowledge to maximize your profit.
Respectfully,
Joan Elflein, Broker / Ohio Broker Direct Ohio Broker Direct & its Brokers or Associates assumes no responsibility or liability for any errors or omissions in this blog, we advise all participants engaged in the buying or selling of Real Estate to enlist the services of a Real Estate Attorney.
