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Read. The. Forms.

By: Hank Lerner, Esq. on in  | 

Once upon a time, PAR made a bunch of changes to the residential Agreement of Sale (Form ASR). As you might guess, we were inundated with calls and emails about the changes. One of my “favorites” went something like this:

Member (angrily): “I can’t believe you changed X! That’s terrible!”

Me (calmly, having fielded the question 100 times already): “If you happen to have a copy of the prior form, I can show you that it isn’t really a change.”

Member (haughtily): “Young man,” (because that was accurate at the time) – “I do not need to read the current form; I already know what it says.”

Except that she clearly didn’t.

Turns out that there was a “we always do it this way” habit in the local market that didn’t mesh up with either version of the form. Members who were fully indoctrinated in the local practice norms just assumed they knew what was in the form, but had stopped actually reading it.

Each year the PAR Legal Hotline fields a fair number of calls with questions can be answered simply by… you guessed it… taking the time to carefully read some of the most common transactional forms every so often.

A few examples from the Agreement of Sale:

Q: I just realized the last day of my contingency period is on a holiday. My client gets an extra day to respond, right?

A: No. Paragraph 5(C) doesn’t say anything about weekends or holidays. If there’s a time squeeze, either change the deadlines when you’re signing the form or you’ll need to negotiate for an extension.

Q: My client assumed that the X would stay with the house!

A: Paragraph 7 has an extensive list of items that are presumed to stay with the property. Review it carefully with your client (buyer or seller), and if there is any question at all about a specific item, have them write it in as included/excluded so everyone is clear.

Q: Aren’t inspection contingency deadlines automatically extended during negotiations?

A: No. Language after paragraph 13(C) specifies that “ongoing negotiations do not automatically extend the negotiation period.”

My advice? Every so often, sit down with some of the most common forms, like the Agreement of Sale, Buyer Agency Contract and Listing Contract – and read them through. Carefully. Paragraph-by-paragraph and word-for-word. If you’re really feeling knowledge-hungry, you could also review the Guidelines for Preparation and Use for each form. And if you’re a broker or manager, you’d be doing your agents a solid by making this process part of a regular office meeting so everyone gets in on the fun.

I bring this up not to be a smart aleck, but to point out that a clear understanding of the actual forms language will help you better serve your clients on a day-to-day basis. And as an added bonus, you may avoid having to play phone tag with a hotline attorney to get an answer you could have gotten on your own.

Agreement of Sale to be Updated July 1

Beginning July 1, all of the agreements should have the following elements to them, where applicable: fixtures and personal property, inspection limitations and reports and the Internet of Things and recordings.

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Comments (5)

Comments

  • Richelle Deane   February 19, 2021 at 8:38 am

    *Mic Drop!*

    Reply to Richelle Deane
  • McLane, Melanie   February 19, 2021 at 10:07 am

    Hank, spot on and not just the AOS. I got a call some time ago from an agent who had used the ‘wrong’ form for sale and settlement of a property her buyer had. She was surprised to learn that the form she had used was one which allowed the sellers to accept another offer, and not give the first buyer a chance to remove that contingency.

    Reply to McLane, Melanie
  • Harry McCarty   February 19, 2021 at 11:27 am

    Right on! Forms need to be reviewed in all the offices and perhaps in zoom meerings to keep agents up to date! Thanks for sharing the examples.

    Reply to Harry McCarty
  • Nancy Wright   February 20, 2021 at 12:43 am

    Great advice and reminder. Unfortunately, I’m willing to bet that most agents won’t take your advice.

    Reply to Nancy Wright
  • Nancy Wright   February 20, 2021 at 12:45 am

    Great advice and reminder.

    Reply to Nancy Wright

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