By Oscar T. Blasingame, Esq.
A real estate contract, whether for a home or commercial property, is also known as a purchase and sale agreement. It’s a legally binding agreement between the buyer and seller. The purpose of the contract is to clearly express the terms and conditions of the sale for the parties. Most state, including Florida require that the transfer of rights in real property to be in writing and signed by all parties. This requirement is known as the “statute of frauds.”
In Florida, there are three main types of real estate contracts used by real estate professionals: The Florida Realtors (FR) Contract for Residential Sale and Purchase (CRSP-15), The Florida Realtor /Florida Bar Association (FR/BAR) Contract for Residential Sale and Purchase, and the FR/BAR “As-Is” Contract for Sale and Purchase.
FAR/BAR contracts are standardized contracts that simplify the home buying process by making the contract easy to read and review by those familiar with the standard provisions. There are standard clauses with blanks for specific points and contingencies, and the person preparing the contract may simply fill in the blanks. There are standardized riders and addenda available to cover some common situations; if there are non-standard clauses needed for a transaction, an addendum with custom clauses can be attached.
The FR/BAR contracts are the most commonly used, and there is an advantage to using the standard FR/BAR or the FR/BAR “As Is”, depending on whether you’re the buyer or the seller.
The FR/BAR Contract
The FR/BAR contract contains provisions regarding the purchase price, closing date, and other associated information including important financial and inspection contingencies. The satisfaction of these contingencies is what ultimately dictates if the sales transaction is completed.
Due to the Property Inspection and Required Condition clauses, this is the most advantageous contract for you, as a buyer, to use when presenting an offer. However, the seller has the right to decline any offers presented on this contract and require the use of the “as-is” contract, if they choose.
A Walkthrough of the Key Points
Personal Property included in the Purchase Price: Personal property is an asset that is not permanently fixed to one location. It is standard in the contract for appliances, ceiling fans, intercoms, light fixtures, storm shutters, garage door openers, and window treatments to be included in the purchase price. If any other personal property items are desired with the sale, they must be written in the blank provided on the contract.
Initial Deposit: A deposit given by the buyer to the seller to show the buyer’s good faith and to bind a purchase offer. The money is held in an escrow account until closing. The deposit can either accompany the offer, or be made within a certain amount of days after the effective date of the contract (typically 3 days).
Additional Deposit: To make an offer more attractive to the seller, there is an option to provide an additional deposit within a certain number of days after the effective date. Typically, if an additional deposit is offered, it is made after the inspection is performed and the inspection period is over.
Time for Acceptance of Offer and Counteroffers: This is the “deadline” given by the buyer to the seller to respond to the offer by either acceptance or counteroffer. If the seller doesn’t respond by the date indicated, the offer is no longer valid. If a deposit accompanied the offer, it is to be returned to the buyer.
Closing Date: The date the title will be transferred and the money exchanges hands. Most financing offers typically offer a closing date between 30 and 60 days after the effective date.
Occupancy and Possession: This clause guarantees that at closing, the seller will deliver possession of the property to the buyer and the buyer will receive the property free of any tenants and personal items.
Financing: This contingency is one of the most important clauses in the contract. The clause states that the contract is contingent upon the buyer obtaining a written loan commitment for the specified loan type within a specified number of days after the effective date (usually 45 days). If the buyer is not able to secure financing and the written loan commitment is not received by the specified time, the buyer has the right to cancel the contract in writing at least 7 days prior to the closing date and receive a refund of the deposit. Additionally, if the loan commitment is received and the contract doesn’t close due to the following reasons, the buyer is released and the deposit will be returned to the buyer: seller’s default, conditions of the loan have not been met, the appraisal is not sufficient to meet the loan terms, and financial failure of the lender.
Closing Costs: Outlines the closing costs that are to be paid by the buyer and the seller.
Title Evidence and Insurance: The buyer must receive a title insurance commitment before the closing date, usually at least 15 days before. If the seller selects the Closing Agent, the seller is responsible for paying for the buyer’s title insurance policy. If the buyer selects the Closing Agent, the buyer is responsible for paying for their title insurance policy.
Property Maintenance: Seller is required to maintain the property in the condition existing as of the effective date of the contract.
Property Inspection and Repair: This contingency is another extremely important clause of the contract. It states that the buyer has a certain number of days after the effective date (usually 15, but less is written in to make offers more attractive) to conduct all inspections and to deliver the written inspection report to the seller. The buyer has the right to request the seller to make any repairs necessary (within the General Repair Limit specified in the contract) to bring the property up to the required condition. If the necessary repairs exceed the General Repair Limit, the seller can pay the excess to the buyer at closing, the buyer can elect to select which repairs are to be made within the General Repair Limit and waive the remaining repairs, or the contract may be terminated and the buyer will receive a refund of their deposit.
Required Condition: the ceiling, roof, exterior and interior walls, doors, windows, and foundation must be free of leaks and damage. The pool, pool equipment, major appliances, heating, cooling, mechanical, electrical, security, sprinkler, septic and plumbing systems, seawalls, and dockage must be in working condition. Torn screens, fogged windows, and missing or damages roof shingles or tiles must be repaired or replaced by the seller prior to closing.
Default: If the buyer doesn’t perform their obligations under the contract, the seller has the right to retain the deposit. If the seller doesn’t perform their obligations under the contract, the buyer will receive a return of their deposit and may seek damages from the seller by dispute resolution.
Title: The seller is required to provide evidence of good and marketable title (title that is free and clear of all objectionable liens or other title defects). If title defects are found, the seller has 30 days (“the Cure Period”) to take reasonable diligent efforts to remove defects. If the seller is unable to cure the title defects, the buyer has the right to terminate the contract and receive a refund of the deposit.
Time: Calendar days are used in the contract to compute time periods. If any time periods specified in the contract (except for Time for Acceptance of Offer and Effective Date) occur on a weekend or national legal holiday, the period will extend to 5:00PM on the next business day.
The FR/BAR “as is” Contract
The “as-is” contract contains the same clauses as the standard FR/BAR contract, with one major difference. The contract gives the buyer a specified inspection period (the default is 15 days but it may be longer or shorter, depending on the offer) to get all property inspections (known as “Due Diligence”). During that time, the buyer has the sole discretion to determine if the property is acceptable to them. If the property is not acceptable to the buyer, they can ask the seller to lower the purchase price, request certain repairs to be completed prior to closing and at the seller’s expense, or to issue a credit at closing to cover the cost of their desired repairs. If the seller refuses, the buyer has the option to withdraw from the deal without losing the deposit. The buyer is not required to provide the written inspection report to the seller, however, nothing prevents them from sharing either. If, the buyer requests repairs to be made, then they need to share the inspection report(s) or the sections of them that cover the need for the requested repairs.
One issue with this contract is that the name includes the term “As Is.” In this care it means that the seller has no obligation to pay for any repairs. The confusion lies in the fact that, under Florida law, sellers of residential real property must disclose any known material defect that may affect the value of the property. The “As Is” nature of this contract does not alleviate a seller from making these mandated disclosures to prospective buyers.
Some material defects that require disclosure include the existence of any potential or actual claims, complaints, or legal proceedings that affect the property, any boundary disputes, any environmental hazards, any damage or infestations from termites or other pests, any problems with essential components such as HVAC, roof, plumbing, electrical, any condominium or homeowner’s association rules that require compliance, and water intrusion whether in the past or present, etc. The best practice for sellers and real estate professionals is, when in doubt disclose. There has been a significant increase in failure to disclose litigation in recent years and many Florida real estate attorneys are adding these types of cases to their marketing.
In addition to disclosing defects, the sale of a home built before 1978 must include a federally mandated, lead based paint (LBP) hazard disclosure. This disclosure should be provided by the seller to potential buyers prior to the buyers submitting an offer to purchase the property and is in any case a mandatory part of any the contract (paragraph 10(f)). While it’s a good idea to provide all seller property disclosures up front, the LBP disclosure is an integral part of the contract and no contract for the sale of a residential property built before 1978 is full and enforceable in its absence. Additional seller disclosures may be made during negotiations or even after the contract is execute, if they are made prior to the end of the inspection period.
The second, possiblly mandatory disclosure is for properties subject to deed restrictions by a Homeowners Association (HOA) or a Condominium Association (COA). The FR/BAR “As Is” contract requires either of these disclosures to be made available to potential buyers prior to them making an offer (paragraph 10(f)). The HOA or COA disclosure must be completed by the seller and sign, the reviewed by the buyer and signed. It is then submitted with the contract as part of the offer. Like the BP disclosure, if the property is subject to an HOA or COA the contract is not complete and enforceable without this document executed by all parties.
The FR/BAR “As Is” Residential Contract for Sale and Purchase of Florida residential real estate is an excellent tool for home sellers, attorneys, and real estate professionals. Superior in its terms to other Florida fill in the black residential sale contract, it is widely used and accepted by attorneys, Brokers, real estate professionals, and the general public. Care should be taken when completing the contract. All parties should read the contract thoroughly paying special attention to Federal and State mandatory disclosure laws. When questions arise, contact a Florida real estate attorney for guidance. While Florida real estate sales associate and broker licensees may fill in the blanks and present the contract as part of an offer, they may not discuss or explain a buyer’s or seller’s legal rights under the contract.
Important Copyright Note: The Fr/Bar “As Is” contract is copyrighted by the Florida Realtorsâ and Florida Bar Association. Use of these contracts is restricted to members of those organizations and their respective agents and employees. Use by any other party is prohibited and enforced by the copyright holders. If you are not a member of either association, then you need to hire someone who is in order to use this contract.
About the Author: Oscar is a practicing, Florida attorney, Real Estate Broker, and Florida Supreme Court Certified Mediator. He began working in real estate as a Realtor in 1994 and later went on to become a real estate attorney in 2002. He is currently the managing broker and CEO of DSCVR Realty in St. Petersburg, Florida. From 2002-2005 Oscar was the sales director for Ballast Point homes LLC. During his tenure with Ballast Point Homes, he managed a sales team that produced over 55 million dollars in condominium and townhome sales. With over twenty-five years of experience, Oscar represents buyers, sellers, business owners, other Realtors, and Brokers with professional, personalized service. In addition to residential sales, as an attorney, Oscar practices real estate and small business law and prepares and negotiates many commercial and residential contracts and leases. He prefers to focus on residential and income property sales in St. Petersburg and the beaches. A native of St. Petersburg, Florida and a second-generation Gator, he received a B.A. from the University of Florida and a J.D. from Stetson University’s College of Law.