One small detail can make a big difference

By Elizabeth Erickson | Jan 09, 2013

The North West Multiple Listing Association’s real estate purchase and sale forms were a collaborative effort of many attorneys and real estate professionals; they are under seemingly constant review and alteration.

The result of this rigorous standard is that we have some of the best real estate forms – in the nation; truly. The contract verbiage is laid out in an excellent format, logical and readable, for anyone who chooses to read them carefully.

Purchase and sale forms initially are simply a delivery system for buyers’ offers to purchase. However when these same pages are mutually agreed upon, they morph into a Legally Binding Contract, a daunting responsibility, not to be lightly undertaken.

The distinct purpose of the language is to protect the integrity and enforceability of the contract. The forms themselves cover rights and responsibilities, the whats, whens, whys, hows, and what-ifs relating to inspections, financing, timelines, appraisals, etc.

As written, these forms do not favor either buyers or sellers.* But that changes instantly when real estate brokers begin filling in the blanks.

One important two-page form was created as a kind of ‘catch-all’ titled “Optional Clauses Addendum” (aka NWMLS 22D).

Too often buyers’ agents misinterpret ‘optional’ as leaving a choice whether to include the form in their buyer’s offer. And occasionally a listing directs buyers agents to omit 22D from offers. (The decision to omit should be made by the informed buyer, not the agent.)

Each of the 11 paragraphs in this addendum has a corresponding box that, when checked, incorporates that paragraph into the contract. (Thus the ‘Optional’ in Optional Clauses.) The unchecked paragraphs are not a part. For example:

☐ Property And Grounds Maintained

“Until possession is transferred to Buyer, Seller agrees to maintain the property in the same condition as when initially viewed by Buyer. The term “property” includes the building(s), grounds, plumbing, heat, electrical and other systems, and all included items. Should an appliance or system become inoperative or malfunction prior to transfer of possession, the Seller agrees to either repair or replace the same with an appliance or system of at least equal quality. Buyer reserves the right to re-inspect the property within five days prior to transfer of possession to verify the foregoing...”

If this addendum is omitted, or this box not checked, or the agent doesn’t follow through and suggest the contracted re-inspection, the result could be that upon accessing, they could discover a pipe had burst – ruining hardwoods. Or the seller took the “included appliances.” Or a myriad of possible scenarios, all bad.

A walk-thru re-inspection prior to closing allows buyers to make a simple phone call instructing escrow: “Do not record. Delay closing.”

Sellers without their net proceeds will more likely negotiate compensation, but after the title is transferred and monies have been wired, buyers’ satisfaction could be very illusive.

And that asterisk up top?

*“Buyer and Seller understand and agree that the Listing Broker and Selling Broker shall not, under any circumstances, be liable for the foregoing or Seller’s breach of this clause.”

(Crummy, eh?)

Elizabeth Erickson is owner and designated broker of Gallery Homes Real Estate. Contact her at erickson@galleryhomesre.com or at the office: 425-212-4300 or direct: 425-508-1405, or go to www.galleryhomesre.com.

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