Critical Seller Dates For As-Is Contract With Fincancing
DEPOSIT DUE DATE:
This is the date by which the buyer must pay the deposit to the Escrow Agent. If for some reason you change your mind on selling the home (or selling it to this particular buyer), you may be able to cancel the contract and put the home back on the market (or take it off the market) if the buyer somehow forgets to submit the deposit by this date.
INSPECTION PERIOD ENDS DATE:
This is the date up until which the buyer can cancel the contract FOR ANY REASON, OR NO REASON and still get their deposit back. It is effectively a kind of “free look period”, so basically you should not get too attached to a buyer until this date has passed. Buyers do have a right to ask you to make repairs or give credits for items (it’s a free country) during this period, but under the “AS IS” contract, you do not have to agree to such requests. Many sellers do agree to such requests, but again, you do not have to. That’s the whole point of the “AS IS” contract.
LOAN APPROVAL PERIOD ENDS DATE:
WATCH THIS DATE CAREFULLY. This is the source of more conflicts in Florida residential contract law than any other part of the contract. This is the date by which the buyer has to determine whether or not they can get a loan to buy the property, and the buyer should inform you one way or the other. There are 4 things that can happen on this date:
- Buyer notifies you in writing that they could not get the loan. In this case, many sellers are tempted to accuse the buyers of “not working hard enough in good faith” to get the loan, or even deliberately “sabotaging” the loan. This is a very hard thing to prove, and almost never worth the effort. If the buyer says they could not get the loan, just let it go, return the deposit and move on to another buyer. It’s common practice for sellers to ask for a denial letter from the buyer’s lender, and buyers often deliver denial letters without your even asking, but it is not required by the contract. Buyers are allowed to say they can’t get financing before this date if they want.
- The buyer notifies you or your realtor in writing that buyer did get the loan (or buyer notifies you that they are waiving the financing contingency). This means that buyer can no longer cancel the contract in reliance on the financing contingency and get their deposit back, even if they don’t get their loan. The deposit is now at risk, and you will be entitled to it in most cases where buyer then fails to close. Many sellers and listing agents are tempted to ask for a copy of the approval letter from the lender. The buyer is not required to deliver it (often it is just verbal anyway), and it is arguably not a good idea to ask for it anyway, because the letters are legal documents which neither you nor your realtor are qualified to interpret anyway, and the letters nearly always contain at least a generic “catch all” contingency that will alarm you. But it doesn’t matter what the approval says, all that matters is that the buyer said they got the loan.
- Buyer asks for a contract Addendum (Amendment) to get more time to get the loan commitment. You are not required to give additional time, though you may choose to do so. Depending on how “desperate” you are, you could either grant this freely or you can ask for something in exchange for the additional time. You could ask for a bigger deposit, or for an extension fee, or you could ask that some or all of the deposit be given to you by the escrow agent immediately in exchange for the extension (this way you are sure you get the deposit if buyer defaults, instead of having to argue for it). This is your decision.
- Buyer says nothing at all and just remains silent. This is very common: buyer has no news from buyer’s lender, so buyer decides to say nothing. It is extremely important that you understand your rights in this case and that you therefore watch this date. If this happens, you can immediately cancel the contract and put the home back on the market, but (a) you must do it within 3 days and (b) you must return the deposit. Remember, you only have 3 days. This requires a “gut check” on your part: do you want to be patient or do you want to get rid of this buyer and put the home back on the market? If you also decide to remain silent and do nothing for 3 days, you can no longer terminate the contract and put the home back on the market (but the buyer’s deposit is at risk). Either way, you should understand your options and make a conscious choice rather than being surprised by events.
SPECIAL CLOSING DATE WARNINGS
Under the FR/BAR contract standard language (assuming it has not subsequently been changed as of this date) there are two situations that can be an unpleasant surprise to sellers that you should be aware of/prepared for:
1 If the home does not appraise, the buyer can cancel the contract literally up until the Closing Date; and
2. If the buyer’s lender is unable to close on the contractual Closing Date because the Closing Disclosure (“CD”) was not delivered within the time frame required by law, the closing date is extended for up to 10 additional days.