The sales agreement captures all terms agreed to by the buyer and seller. For this reason, it is perhaps the most important document in a real estate transaction. Both buyer and seller must have a thorough understanding of its contents to ensure that the actual deal aligns with their thoughts.
A standardized sales agreement is utilized in most transaction. Pennsylvania's Standard Agreement of Sale (ASR) is shown in the example below. Actual terms and language can vary by state. The buyer's real estate agent will typically prepare the sales agreement and distribute to all parties for signature. The guide below is intended to help explain the various sections of the agreement. It is highly recommended to also seek the counsel of a licensed Realtor® and/or attorney.
A standardized sales agreement is utilized in most transaction. Pennsylvania's Standard Agreement of Sale (ASR) is shown in the example below. Actual terms and language can vary by state. The buyer's real estate agent will typically prepare the sales agreement and distribute to all parties for signature. The guide below is intended to help explain the various sections of the agreement. It is highly recommended to also seek the counsel of a licensed Realtor® and/or attorney.
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Parties
When identifying the buyer and seller in the transaction, it is very important to list ALL buyers and ALL sellers, preferably by the name listed on the deed (for sellers) or the name to be put on the deed (for buyers). For example, if a husband and wife own a property jointly, both names should be listed in the Agreement. If the property is deeded only to the wife, though, only her name would be listed. Similarly, if the property is owned by a business entity, the name of that business should be listed.
On the seller’s side, listing all sellers helps to make sure that all owners of record actually sign the Agreement. If the property is owned by several individuals and one fails to sign the Agreement, the Agreement (and possibly the transaction) may not be valid. Buyers, attorneys and title companies will often use the listed buyers’ names to prepare a new deed. If the buyers forget to list someone who should be on the deed, it may hold up the transaction or could require making this legal change after the fact at additional expense.
When identifying the buyer and seller in the transaction, it is very important to list ALL buyers and ALL sellers, preferably by the name listed on the deed (for sellers) or the name to be put on the deed (for buyers). For example, if a husband and wife own a property jointly, both names should be listed in the Agreement. If the property is deeded only to the wife, though, only her name would be listed. Similarly, if the property is owned by a business entity, the name of that business should be listed.
On the seller’s side, listing all sellers helps to make sure that all owners of record actually sign the Agreement. If the property is owned by several individuals and one fails to sign the Agreement, the Agreement (and possibly the transaction) may not be valid. Buyers, attorneys and title companies will often use the listed buyers’ names to prepare a new deed. If the buyers forget to list someone who should be on the deed, it may hold up the transaction or could require making this legal change after the fact at additional expense.
Property
The Property section is a description of the property to be purchased. In most cases the property will be identified both by the street address, including the municipality, ZIP code, county, and school district, as well as by a more thorough legal description of the property. If there is any doubt or confusion about the actual location of the property or the property boundaries, talk to your Realtor® about obtaining a survey. Many buyers are interested in living in a particular ZIP code or sending their children to school in a specific school district, so both buyer and seller are encouraged to double-check this information for accuracy.
The Property section is a description of the property to be purchased. In most cases the property will be identified both by the street address, including the municipality, ZIP code, county, and school district, as well as by a more thorough legal description of the property. If there is any doubt or confusion about the actual location of the property or the property boundaries, talk to your Realtor® about obtaining a survey. Many buyers are interested in living in a particular ZIP code or sending their children to school in a specific school district, so both buyer and seller are encouraged to double-check this information for accuracy.
Brokers
The boxes at the bottom of the front page of the Agreement contain information that identifies the broker or brokers who are providing real estate services in the transaction and their relationship(s) to the buyer and seller. It is very important that you understand the relationship you have with each broker and the legal duties that each broker owes you (or doesn’t owe you). Unless you have entered into a written agency contract creating a legal relationship between you and the broker, the broker may NOT be representing your interests and may be representing the other party. If you have a question about how these relationships work, review the Consumer Notice (the first form the Realtor® gave you) and ask the Realtor® to clarify his or her role in the transaction.
The boxes at the bottom of the front page of the Agreement contain information that identifies the broker or brokers who are providing real estate services in the transaction and their relationship(s) to the buyer and seller. It is very important that you understand the relationship you have with each broker and the legal duties that each broker owes you (or doesn’t owe you). Unless you have entered into a written agency contract creating a legal relationship between you and the broker, the broker may NOT be representing your interests and may be representing the other party. If you have a question about how these relationships work, review the Consumer Notice (the first form the Realtor® gave you) and ask the Realtor® to clarify his or her role in the transaction.
1 - Agreement Date
The first section of the Agreement states the date the Agreement was first presented as an offer. The date in this paragraph is generally NOT the same as the “acceptance date,” or “Execution Date” - the date a valid contract exists. This date is simply used as a convenience to identify when the buyer’s offer was first presented and will be particularly helpful if more than one Agreement is submitted at dif- ferent times.
The first section of the Agreement states the date the Agreement was first presented as an offer. The date in this paragraph is generally NOT the same as the “acceptance date,” or “Execution Date” - the date a valid contract exists. This date is simply used as a convenience to identify when the buyer’s offer was first presented and will be particularly helpful if more than one Agreement is submitted at dif- ferent times.
2 - Purchase Price and Deposits
The purchase price is the first of many terms stated in the Agreement. While many buyers and sellers assume that this is the most important part of the Agreement, there are many other negotiable terms that can be just as important as the purchase price. To make your offer as attractive as possible to the seller, be sure to pay attention to all the terms in the Agreement - don’t focus only on the purchase price.
How much should a buyer offer to pay for the property? Which offer should sellers accept? These are decisions that depend on many different factors. Buyers and sellers will need to consider things such as whether there are other offers, the recent sale prices of similar homes, how long the property has been on the market, and the motivations of the buyer and seller. Your Realtor® can help you review the issues to consider, but the Realtor® can’t make the final decision for you.
Good Faith Deposit
Buyers are almost always expected to make a “good faith” deposit (sometimes called “hand money,” “earnest money” or “down money”) on the property. Deposits can be given in one large deposit or in two (or more) steps. When a buyer makes an offer, an initial deposit is usually given to the seller along with the Agreement, or shortly thereafter depending on how the Agreement is delivered to the seller.
In some markets, if the seller accepts the offer a second deposit is due within a short time after acceptance. In other markets, it is not uncommon for there to be a third deposit at some point later in the transaction. However they are paid, the deposits will be credited toward the total purchase price and/or closing costs at time of settlement.
The amount and timing of deposits is often determined by local custom. Ask your Realtor® about what is customary in your area, keeping in mind that these are always negotiable issues.
The Agreement allows the buyer to pay by cashier’s check, wired funds or personal check if a deposit is being made 30 or more days from the settlement date. If a deposit is being made within 30 days of the settlement date, the buyer must pay by cashier’s check or wired funds, not by personal check. These specifications can be modified if the Buyer and Seller agree on a change.
Escrow Accounts
In most markets a buyer’s deposits are held by the Realtor® representing the seller, although it may be the practice in other markets for the Realtor® representing the buyer to hold it. Whichever Realtor® holds the deposits, they will be held in a special bank account called an “escrow account.” When com- pleting the Agreement, the parties will determine who will be holding the deposit.
There are laws and regulations governing how brokers must handle money deposited in their escrow accounts. One of those rules is that the broker generally cannot release the deposit money to either the buyer or seller if there is any dispute over how the money is to be distributed. If the buyer or seller breaks the Agreement after it has been signed, the broker is not legally permitted to give the deposit money to either party unless the buyer and seller both agree on who should get the deposit money.
The two primary exceptions to this rule are that a broker must distribute deposits according to the terms of (1) a final court order (there is a lawsuit and the court directs payment); or (2) a “pre-agreement” between the parties as to what happens if there is a dispute that isn’t resolved. For example, the Agreement says in Paragraph 26(C) that if the buyer and seller can’t resolve a dispute within 180 days the buyer gets the deposit back unless a lawsuit has been filed.
The purchase price is the first of many terms stated in the Agreement. While many buyers and sellers assume that this is the most important part of the Agreement, there are many other negotiable terms that can be just as important as the purchase price. To make your offer as attractive as possible to the seller, be sure to pay attention to all the terms in the Agreement - don’t focus only on the purchase price.
How much should a buyer offer to pay for the property? Which offer should sellers accept? These are decisions that depend on many different factors. Buyers and sellers will need to consider things such as whether there are other offers, the recent sale prices of similar homes, how long the property has been on the market, and the motivations of the buyer and seller. Your Realtor® can help you review the issues to consider, but the Realtor® can’t make the final decision for you.
Good Faith Deposit
Buyers are almost always expected to make a “good faith” deposit (sometimes called “hand money,” “earnest money” or “down money”) on the property. Deposits can be given in one large deposit or in two (or more) steps. When a buyer makes an offer, an initial deposit is usually given to the seller along with the Agreement, or shortly thereafter depending on how the Agreement is delivered to the seller.
In some markets, if the seller accepts the offer a second deposit is due within a short time after acceptance. In other markets, it is not uncommon for there to be a third deposit at some point later in the transaction. However they are paid, the deposits will be credited toward the total purchase price and/or closing costs at time of settlement.
The amount and timing of deposits is often determined by local custom. Ask your Realtor® about what is customary in your area, keeping in mind that these are always negotiable issues.
The Agreement allows the buyer to pay by cashier’s check, wired funds or personal check if a deposit is being made 30 or more days from the settlement date. If a deposit is being made within 30 days of the settlement date, the buyer must pay by cashier’s check or wired funds, not by personal check. These specifications can be modified if the Buyer and Seller agree on a change.
Escrow Accounts
In most markets a buyer’s deposits are held by the Realtor® representing the seller, although it may be the practice in other markets for the Realtor® representing the buyer to hold it. Whichever Realtor® holds the deposits, they will be held in a special bank account called an “escrow account.” When com- pleting the Agreement, the parties will determine who will be holding the deposit.
There are laws and regulations governing how brokers must handle money deposited in their escrow accounts. One of those rules is that the broker generally cannot release the deposit money to either the buyer or seller if there is any dispute over how the money is to be distributed. If the buyer or seller breaks the Agreement after it has been signed, the broker is not legally permitted to give the deposit money to either party unless the buyer and seller both agree on who should get the deposit money.
The two primary exceptions to this rule are that a broker must distribute deposits according to the terms of (1) a final court order (there is a lawsuit and the court directs payment); or (2) a “pre-agreement” between the parties as to what happens if there is a dispute that isn’t resolved. For example, the Agreement says in Paragraph 26(C) that if the buyer and seller can’t resolve a dispute within 180 days the buyer gets the deposit back unless a lawsuit has been filed.
3 - Seller Assist
Some sellers may be willing to pay part of the buyers’ costs incurred to obtain the mortgage loan or to settle on the property. These arrangements must be clearly spelled out in the Agreement. It is important to know whether your lender has a limit on how much sellers are allowed to pay and what that limit is. This limit can vary between lenders or even between loan products from the same lender.
Some sellers may be willing to pay part of the buyers’ costs incurred to obtain the mortgage loan or to settle on the property. These arrangements must be clearly spelled out in the Agreement. It is important to know whether your lender has a limit on how much sellers are allowed to pay and what that limit is. This limit can vary between lenders or even between loan products from the same lender.
4 - Settlement and Possession
Settlement Date
Choose the settlement date very carefully. Among other factors, the settlement date will depend upon the time it will take to complete any desired property inspections and to obtain a mortgage loan, if one is necessary. The buyer will often consider the seller’s preferred settlement date.
As simple as it seems, it is a good idea to have a calendar handy when dealing with the Agreement of Sale. When picking a settlement date it is best to avoid weekends and holidays, as well as dates with other conflicts such as vacations or work deadlines. Also, remember that settlements can often take several hours to a half day, so don’t pick a day thinking that you can just squeeze it in at lunch.
At settlement the buyer will receive a copy of the deed. The original deed will be recorded in the Office of the Recorder of Deeds for the county where the property is located. The Recorder will stamp the deed with the date and location of recording and will send the deed to the buyer. There is more information on deeds and titles later in this booklet.
Taxes
In Pennsylvania, a real estate transfer tax is assessed when a property is purchased. The state imposes a tax on all transactions and there may be a local transfer tax on the transaction as well. Transfer taxes may range from a minimum of 1% to 4% or more of the purchase price. If the Agreement is being assigned to another buyer, it may affect the transfer tax on the property. Talk to an attorney if you are planning on assigning the Agreement. In most areas the practice is to divide payment of the transfer taxes equally between the buyer and the seller, but this is negotiable.
Real estate property taxes and other obligations such as condominium or homeowner association fees, other fees and rents, and interest on mortgage loan assumptions are “prorated” at settlement. This means that the seller is responsible only for the portion of the taxes and other assessments up to and including the day of settlement, and the buyer is responsible for paying the taxes and fees after the settlement date. If the seller has already paid these bills, the “adjustment” will generally require the buyer to reimburse the seller for the buyer’s portion.
Review all tax bills carefully to be sure you understand what taxing periods are covered by each. For example, all municipal governments base their bills on a tax year that runs from January 1 to December 31; most school districts have a tax year of July 1 to June 30.
How are Taxes Calculated?
By law, transfer taxes are a fixed percentage of the purchase price of the property. Check with your Realtor® to find out what the transfer tax is in your community.
Local property taxes are set by the municipality and school district and are based on a percentage of the assessed value of the property. Property taxes may change each year based on the millage set by the municipality and the assessed value of your property.
Possession
Unless otherwise agreed to, the buyer can expect to receive the deed and the keys to the vacant property at settlement. Of course, “vacant” doesn’t necessarily mean that there will be nothing left in the property. If the parties have agreed that the seller will leave certain items (appliances or furniture, for example), buyers should check for these items during the pre-settlement walk through. At the same time, it is understood that the seller is responsible for removing all personal items that haven’t been negotiated. That means the seller is not permitted to just leave behind trash or any other items that they don’t want in their new home.
Sometimes the parties will agree to let the buyer move in before settlement or to let the seller stay after settlement. Make sure this is IN WRITING, just like the rest of the Agreement. Issues like fees for this extra time of possession and who is responsible for any damages are best dealt with well before settlement. PAR publishes forms covering many of the issues involved in both seller and buyer occupancy.
If the property is tenant-occupied, make sure that leases are properly transferred from the seller to the buyer and that the seller has taken care of any remaining obligations to tenants. There is a PAR form for this purpose as well.
Settlement Date
Choose the settlement date very carefully. Among other factors, the settlement date will depend upon the time it will take to complete any desired property inspections and to obtain a mortgage loan, if one is necessary. The buyer will often consider the seller’s preferred settlement date.
As simple as it seems, it is a good idea to have a calendar handy when dealing with the Agreement of Sale. When picking a settlement date it is best to avoid weekends and holidays, as well as dates with other conflicts such as vacations or work deadlines. Also, remember that settlements can often take several hours to a half day, so don’t pick a day thinking that you can just squeeze it in at lunch.
At settlement the buyer will receive a copy of the deed. The original deed will be recorded in the Office of the Recorder of Deeds for the county where the property is located. The Recorder will stamp the deed with the date and location of recording and will send the deed to the buyer. There is more information on deeds and titles later in this booklet.
Taxes
In Pennsylvania, a real estate transfer tax is assessed when a property is purchased. The state imposes a tax on all transactions and there may be a local transfer tax on the transaction as well. Transfer taxes may range from a minimum of 1% to 4% or more of the purchase price. If the Agreement is being assigned to another buyer, it may affect the transfer tax on the property. Talk to an attorney if you are planning on assigning the Agreement. In most areas the practice is to divide payment of the transfer taxes equally between the buyer and the seller, but this is negotiable.
Real estate property taxes and other obligations such as condominium or homeowner association fees, other fees and rents, and interest on mortgage loan assumptions are “prorated” at settlement. This means that the seller is responsible only for the portion of the taxes and other assessments up to and including the day of settlement, and the buyer is responsible for paying the taxes and fees after the settlement date. If the seller has already paid these bills, the “adjustment” will generally require the buyer to reimburse the seller for the buyer’s portion.
Review all tax bills carefully to be sure you understand what taxing periods are covered by each. For example, all municipal governments base their bills on a tax year that runs from January 1 to December 31; most school districts have a tax year of July 1 to June 30.
How are Taxes Calculated?
By law, transfer taxes are a fixed percentage of the purchase price of the property. Check with your Realtor® to find out what the transfer tax is in your community.
Local property taxes are set by the municipality and school district and are based on a percentage of the assessed value of the property. Property taxes may change each year based on the millage set by the municipality and the assessed value of your property.
Possession
Unless otherwise agreed to, the buyer can expect to receive the deed and the keys to the vacant property at settlement. Of course, “vacant” doesn’t necessarily mean that there will be nothing left in the property. If the parties have agreed that the seller will leave certain items (appliances or furniture, for example), buyers should check for these items during the pre-settlement walk through. At the same time, it is understood that the seller is responsible for removing all personal items that haven’t been negotiated. That means the seller is not permitted to just leave behind trash or any other items that they don’t want in their new home.
Sometimes the parties will agree to let the buyer move in before settlement or to let the seller stay after settlement. Make sure this is IN WRITING, just like the rest of the Agreement. Issues like fees for this extra time of possession and who is responsible for any damages are best dealt with well before settlement. PAR publishes forms covering many of the issues involved in both seller and buyer occupancy.
If the property is tenant-occupied, make sure that leases are properly transferred from the seller to the buyer and that the seller has taken care of any remaining obligations to tenants. There is a PAR form for this purpose as well.
5 - DATES/TIME IS OF THE ESSENCE
Acceptance Deadline
A buyer and seller will usually want to insert some sort of a deadline for them to agree to the terms of the Agreement. If the Agreement is not accepted by the deadline and the deadline is not extended, the offer will become void. Consider factors such as local custom, the buyer’s or seller’s sense of urgency regarding the transaction and schedules of the parties and brokers when setting this deadline.
Dates and Times
Throughout the Agreement there are many spots that establish time frames for completing certain acts (for example, ordering and delivering inspection reports or making a mortgage application). Considering what needs to be accomplished and selecting realistic time frames for each task is CRUCIAL. Keep in mind that your Realtor® probably has a good idea about how long it usually takes to do these things in your market area.
Although some of these times are pre-printed in the Agreement, they are by no means set in stone. If you need a different period of time to complete a certain part of the Agreement there is room for you to cross out the pre-printed numbers and put in a different number. Keep in mind that the buyer and seller must agree to any changes.
The Agreement of Sale provides that “time is of the essence.” This is a technical phrase meaning that
if you don’t do something by an agreed upon date you can lose certain rights or be in default of the Agreement. For this reason, it is critical that the dates in the Agreement be strictly followed, including the time for settlement.
The time for performing under the Agreement doesn’t start until the parties have reached a final under- standing on all terms of the contract. It is important that every change to the Agreement be initialed and dated by both parties, so that everyone can keep track of when to “start the clock,” it is important that every change to the Agreement be initialed and dated by both parties.
Acceptance Deadline
A buyer and seller will usually want to insert some sort of a deadline for them to agree to the terms of the Agreement. If the Agreement is not accepted by the deadline and the deadline is not extended, the offer will become void. Consider factors such as local custom, the buyer’s or seller’s sense of urgency regarding the transaction and schedules of the parties and brokers when setting this deadline.
Dates and Times
Throughout the Agreement there are many spots that establish time frames for completing certain acts (for example, ordering and delivering inspection reports or making a mortgage application). Considering what needs to be accomplished and selecting realistic time frames for each task is CRUCIAL. Keep in mind that your Realtor® probably has a good idea about how long it usually takes to do these things in your market area.
Although some of these times are pre-printed in the Agreement, they are by no means set in stone. If you need a different period of time to complete a certain part of the Agreement there is room for you to cross out the pre-printed numbers and put in a different number. Keep in mind that the buyer and seller must agree to any changes.
The Agreement of Sale provides that “time is of the essence.” This is a technical phrase meaning that
if you don’t do something by an agreed upon date you can lose certain rights or be in default of the Agreement. For this reason, it is critical that the dates in the Agreement be strictly followed, including the time for settlement.
The time for performing under the Agreement doesn’t start until the parties have reached a final under- standing on all terms of the contract. It is important that every change to the Agreement be initialed and dated by both parties, so that everyone can keep track of when to “start the clock,” it is important that every change to the Agreement be initialed and dated by both parties.
6 - Zoning
The zoning classification is required in an Agreement of Sale unless the property is in an area primarily zoned to permit single family dwellings.
Later, in the Inspections paragraph of the Agreement, the buyers will be asked to decide whether they want to check the present use or make the Agreement conditional on a change in use. If the buyer has certain zoning needs, the buyer should investigate the zoning issues that relate to those needs. Sellers and agents should be careful to not guess at what uses would be allowed.
NOTE: If the buyer plans to change the use of the property, it may be wise to make the purchase contingent on zoning. The PAR Zoning Approval Contingency (PAR Form ZA) gives buyers the right to check if the future use is permitted, or to apply for a change of zoning.
The zoning classification is required in an Agreement of Sale unless the property is in an area primarily zoned to permit single family dwellings.
Later, in the Inspections paragraph of the Agreement, the buyers will be asked to decide whether they want to check the present use or make the Agreement conditional on a change in use. If the buyer has certain zoning needs, the buyer should investigate the zoning issues that relate to those needs. Sellers and agents should be careful to not guess at what uses would be allowed.
NOTE: If the buyer plans to change the use of the property, it may be wise to make the purchase contingent on zoning. The PAR Zoning Approval Contingency (PAR Form ZA) gives buyers the right to check if the future use is permitted, or to apply for a change of zoning.
7 - Fixtures and Personal Property
There will often be certain fixtures and personal property (appliances or lighting fixtures, for example) included with the property as part of the sale. If specific items are to be included or excluded, they must be clearly listed in the Agreement. Any information provided through the multiple listing service (MLS) or any items identified in the Seller's Property Disclosure Statement don't count if they are not also listed in the Agreement.
The Agreement contains a list of personal property items that are commonly included in the sale. It is important for buyers and sellers to carefully review this list to make sure that everything that should stay is included and everything that should go is excluded. Any item of personal property that isn’t included in the Agreement in writing is NOT part of the transaction and does not stay with the property. If there is any confusion about the transaction, the written terms of the Agreement will decide what stays and what goes.
There will often be certain fixtures and personal property (appliances or lighting fixtures, for example) included with the property as part of the sale. If specific items are to be included or excluded, they must be clearly listed in the Agreement. Any information provided through the multiple listing service (MLS) or any items identified in the Seller's Property Disclosure Statement don't count if they are not also listed in the Agreement.
The Agreement contains a list of personal property items that are commonly included in the sale. It is important for buyers and sellers to carefully review this list to make sure that everything that should stay is included and everything that should go is excluded. Any item of personal property that isn’t included in the Agreement in writing is NOT part of the transaction and does not stay with the property. If there is any confusion about the transaction, the written terms of the Agreement will decide what stays and what goes.
8 - Mortgage Contingency
There are many different mortgage products available through various lenders. In some cases these mortgages might involve multiple loans a first and second mortgage, for example, or a mortgage loan with an accompanying line of credit. Buyers would be well served to talk to their Realtor® or a financing expert to determine what types of loans might be attractive based on their current financial status. Buyers should thoroughly assess their financial situation before setting a price range for their search and looking at properties.
Most buyers will require mortgage financing to buy a home, so most will elect to include a mortgage contingency in the Agreement. In short, the contingency states that the buyer won’t have to move forward with the purchase if a good faith application for mortgage financing is denied.
To help the seller judge whether a particular buyer is likely to be able to afford the property, the Agreement asks buyers to be fairly specific in stating what their mortgage requirements will be. Sellers may want to ask for certain proof that the buyers have, or can get, the resources to purchase their home.
Mortgage Amount
Aside from asking the buyer to identify if multiple loans will be involved, the Agreement also asks for information regarding the mortgage amount, the term of the loan(s), the type of loan(s), the mortgage lender(s), loan-to-value ratio, interest rate(s), and “points.” When judging the ability of a certain buyer to purchase their home, sellers will look at whether the buyer has the financial strength to afford payments on the mortgage amount being sought. In most transactions, the mortgage amount is calculated by taking the full purchase price of the property and subtracting any deposits already paid by the buyer along with any other cash the buyer expects to bring to settle- ment. In some cases, though, the buyer may have special needs. The most common of these scenarios would be a purchase where the buyer also wants to borrow additional money to cover closing costs or to pay for repairs or renovations. These types of loans are also only available through a limitied number of loan programs, so sellers should consider whether a buyer would qualify for those programs.
Mortgage Term
The “term” of the mortgage is the length of time it will take to repay the loan in full. Although the “tradi- tional” loan is 30 years, other loans are available for 15 years, 20 years, or even 40 years. Keep in mind that a monthly payment can vary greatly depending on the term of the loan the longer the term, the lower the payment. The term of the loan can also affect the interest rate and the buyer’s ability to qualify for the loan.
Loan-To-Value Ratio (LTV)
The Agreement allows the buyer to set an upper limit on something called a Loan-to-Value ratio, or “LTV.” The LTV may be used by lenders to help assess the potential risk of a mortgage loan. LTV is determined by dividing the requested loan amount by either the Purchase Price or the appraised value of the property, whichever is lower.
A particular LTV may be necessary to qualify for certain loans, or buyers might be required to pay addi- tional fees if the LTV exceeds a specific level. For example, if you are planning to borrow $80,000 for a property that appraises at $100,000 your LTV is 80% ($80,000/$100,000). Stated another way, the loan ($80,000) should not be more than 80% of the value of the home ($100,000). Buyers should talk to their Realtor® about whether this term should be included and, if so, what the maximum LTV should be.
Types of Mortgages
Mortgages come in many varieties. Many loans are variations on the traditional “conventional” mortgage loans, but each lender has its own requirements and there are a number of loans and loan guarantee programs available through the federal, state and local governments. Most loans will require a down pay- ment of some sort (often between 5% and 20% of the purchase price), although the amount may differ depending on the lender and the programs for which a buyer qualifies. Some loan products may permit downpayments as low as 1% to 3%, and there are even others that will finance 100% or more of the pur- chase price. Keep in mind that buyers who have down payments of less than 20% may be required to purchase private mortgage insurance (“PMI”), which is available for an additional fee.
If a buyer is financing through the Federal Housing Administration (FHA) or the Veterans Administration (VA), make sure to read the mortgage paragraph and the FHA/VA Notice in the Agreement. FHA mort- gages are insured by the Department of Housing and Urban Development’s (HUD) Federal Housing Administration program. A VA loan is a mortgage loan on approved property made to a qualified veter- an. One advantage of these programs is a relatively low down payment. In most cases, VA loans don’t require any down payment. Other criteria may be more strict than a conventional loan. Talk to your Realtor® about whether there are certain types of loans you should (or shouldn’t) pursue.
Mortgage Lenders
While most lenders are very reliable and reputable, some lenders may be less reliable than others in your market area. Asking buyers to identify the lender they intend to use has two benefits. First, buyers are encouraged to research lenders prior to submitting an offer. Since the mortgage contingency paragraph of the Agreement gives buyers a limited period of time to submit their actual application (which can’t be done until their offer has been accepted), buyers who have identified lenders ahead of time should have an easier time making this deadline.
Second, having a lender identified in the offer may also help sellers determine the likelihood that a trans- action will make it through closing with no financing delays. If a seller is aware that a particular lender tends to have problems with delaying, or even canceling, planned closings, the seller may be less likely to want to accept that offer.
Including the name of a mortgage lender or lenders is not mandatory. Buyers should consult their Realtor® to determine whether naming the lender would be beneficial. Where an offer is presented without a named lender, sellers should discuss with their Realtor® whether or not to request that the buyer identify one.
Mortgage Rates
There are actually two interest rates stated in the Agreement. The first is the rate that the buyer is hoping to get and the second is the highest rate the buyer is willing to accept. As with other elements of this contingency, be realistic. If a mortgage is approved with the terms stated in the Agreement but the buyer fails to accept or “lock in” that loan with an acceptable interest rate, the buyer may be in default if the rates later rise above the stated interest rate cap and the buyer refuses to accept the loan at that time.
Federal regulations require mortgage lenders to provide buyers with a Loan Estimate (LE) statement within three business days from receipt of the buyer’s mortgage application. Settlement cannot occur within 7 days of the early disclo- sure or within 3 days of redisclosure. Redisclosure is only permitted if there is a change in circumstances. For example, if the buyer fails to lock in the interest rate quoted in the LE within 10 days, that is a change in circumstances, and the lender may issue a revised LE. The Agreement requires the buyer to lock in his interest rate 15 days before settlement if the lender gives the buyer the chance because interest rates can have a large impact on the APR.
Fixed Rate vs. Adjustable/Variable Rate Loans
Interest on mortgage loans can be at a fixed rate, which means the monthly payment never changes except for possible increases in taxes and insurance.
- OR -
A loan may be an adjustable-rate mortgage (“ARM”) or variable-rate mortgage (“VRM”), which means the monthly payment on the mortgage loan may change. The calculation of these changes is complicated and should be clearly understood before choosing this type of loan.
What are Points?
“Points” are the fees that the mortgage lender charges buyers for providing certain services. One “point” is equal to one percent of the mortgage amount. The Agreement asks buyers to put in a maximum num- ber of points they are willing to pay often called a “cap.” For example, if points are “capped” at three
for a $100,000.00 loan, the buyer will not be required to buy the property if a lender offers a mortgage commitment requiring the payment of more than three points, or $3,000.00. Buyers pay points up front in cash as part of closing costs; the money is not financed as part of the mortgage loan.
Two Important Deadlines
The Mortgage Contingency paragraph of the Agreement has two big deadlines. The first deadline is the time in which the buyer has to submit a mortgage application. The second deadline is the date by which the buyer must have an answer from the mortgage lender to give to the seller.
The dates should be chosen carefully because it is not just the deadline for the mortgage lender to give approval for the loan the seller or the seller’s broker also must receive a copy of the lender’s decision by this date. Remember that if the buyer doesn’t meet these deadlines the buyer may be in default and the seller may have the option to cancel the Agreement and keep the buyer’s deposit.
Conditional Approvals
Be careful if a mortgage loan will be conditioned on something that isn’t provided for in the Agreement. If the lender has requirements or conditions that are not part of the Agreement, then the seller may have the right to terminate the Agreement. For any condition on the approval (such as verifying income or selling or settling on another property), buyers have 7 days after the deadline to satisfy these conditions. Certain types of routine conditions that can only be met at or near settlement don’t give sellers the right to terminate, however. Such routine conditions might include a final verification of employment or providing proof of property insurance.
As a buyer, if you know you must sell your current home before purchasing a new one consider making your offer contingent on the sale or settlement of this other property. PAR offers several addenda for this purpose, depending on your circumstances.
Lender Requirements
Every lender has slightly different requirements for approving a loan. These requirements will vary depending on the type of loan being offered and are often very dependent on the buyer’s current finan- cial status and financial history.
The value of the property is another major element that goes into the lender’s decision. In the unlikely event that a buyer stops making payments and the lender has to foreclose on the property, that lender wants to be sure that the value of the property is high enough that the lender could sell the property and get its money back. Before lending a buyer the money to purchase the property, the mortgage lender will almost certainly do an appraisal to make sure the house meets the lender’s standards for the loan. After appraising the property the lender will decide the maximum amount of money that may be borrowed.
In most mortgage transactions, Federal lending regulations prohibit lenders from charging fees for appraisals to potential buyers before that buyer has indicated that he or she agrees to the terms presented in the Loan Estimate. Until that time, potential buyers may only be charged a reasonable fee for the credit report done by the lender. After accepting the terms of the Loan Estimate and indicating an intent to move forward with the mortgage, the buyer will likely be required to promptly order (and pay for) an appraisal on the property. It is essential that the lender’s timelines be followed so that settlement can occur as scheduled.
Keep in mind that the appraised value of the property may be different from the agreed-upon purchase price. Sometimes the appraised value will be too low for the lender to approve the entire amount of the mortgage that has been requested. If the buyer still wants to purchase the property, it will be neces- sary to find additional money to make up the difference.
What if the Loan Is Not Approved?
If a mortgage is approved within the terms specified in the Agreement, the buyer must proceed with the transaction. If the buyer meets all of the obligations spelled out in this contingency and is still turned down for a mortgage, the terms of the Agreement state that the buyer will not have to go through with the purchase.
Remember that this is only true where the buyer has, in fact, done everything required by the terms of the Agreement. This means the buyer must have completed the application and locked in the interest rate within the time given, the application had the same terms as were listed in the Agreement, the buyer was honest with the seller and mortgage lender regarding buyer’s finances, and the buyer has fully cooperated with the lender during the processing of the application. If the buyer has failed to meet the obligations agreed to in the Agreement, he would likely be in default if the loan is not approved.
There are many different mortgage products available through various lenders. In some cases these mortgages might involve multiple loans a first and second mortgage, for example, or a mortgage loan with an accompanying line of credit. Buyers would be well served to talk to their Realtor® or a financing expert to determine what types of loans might be attractive based on their current financial status. Buyers should thoroughly assess their financial situation before setting a price range for their search and looking at properties.
Most buyers will require mortgage financing to buy a home, so most will elect to include a mortgage contingency in the Agreement. In short, the contingency states that the buyer won’t have to move forward with the purchase if a good faith application for mortgage financing is denied.
To help the seller judge whether a particular buyer is likely to be able to afford the property, the Agreement asks buyers to be fairly specific in stating what their mortgage requirements will be. Sellers may want to ask for certain proof that the buyers have, or can get, the resources to purchase their home.
Mortgage Amount
Aside from asking the buyer to identify if multiple loans will be involved, the Agreement also asks for information regarding the mortgage amount, the term of the loan(s), the type of loan(s), the mortgage lender(s), loan-to-value ratio, interest rate(s), and “points.” When judging the ability of a certain buyer to purchase their home, sellers will look at whether the buyer has the financial strength to afford payments on the mortgage amount being sought. In most transactions, the mortgage amount is calculated by taking the full purchase price of the property and subtracting any deposits already paid by the buyer along with any other cash the buyer expects to bring to settle- ment. In some cases, though, the buyer may have special needs. The most common of these scenarios would be a purchase where the buyer also wants to borrow additional money to cover closing costs or to pay for repairs or renovations. These types of loans are also only available through a limitied number of loan programs, so sellers should consider whether a buyer would qualify for those programs.
Mortgage Term
The “term” of the mortgage is the length of time it will take to repay the loan in full. Although the “tradi- tional” loan is 30 years, other loans are available for 15 years, 20 years, or even 40 years. Keep in mind that a monthly payment can vary greatly depending on the term of the loan the longer the term, the lower the payment. The term of the loan can also affect the interest rate and the buyer’s ability to qualify for the loan.
Loan-To-Value Ratio (LTV)
The Agreement allows the buyer to set an upper limit on something called a Loan-to-Value ratio, or “LTV.” The LTV may be used by lenders to help assess the potential risk of a mortgage loan. LTV is determined by dividing the requested loan amount by either the Purchase Price or the appraised value of the property, whichever is lower.
A particular LTV may be necessary to qualify for certain loans, or buyers might be required to pay addi- tional fees if the LTV exceeds a specific level. For example, if you are planning to borrow $80,000 for a property that appraises at $100,000 your LTV is 80% ($80,000/$100,000). Stated another way, the loan ($80,000) should not be more than 80% of the value of the home ($100,000). Buyers should talk to their Realtor® about whether this term should be included and, if so, what the maximum LTV should be.
Types of Mortgages
Mortgages come in many varieties. Many loans are variations on the traditional “conventional” mortgage loans, but each lender has its own requirements and there are a number of loans and loan guarantee programs available through the federal, state and local governments. Most loans will require a down pay- ment of some sort (often between 5% and 20% of the purchase price), although the amount may differ depending on the lender and the programs for which a buyer qualifies. Some loan products may permit downpayments as low as 1% to 3%, and there are even others that will finance 100% or more of the pur- chase price. Keep in mind that buyers who have down payments of less than 20% may be required to purchase private mortgage insurance (“PMI”), which is available for an additional fee.
If a buyer is financing through the Federal Housing Administration (FHA) or the Veterans Administration (VA), make sure to read the mortgage paragraph and the FHA/VA Notice in the Agreement. FHA mort- gages are insured by the Department of Housing and Urban Development’s (HUD) Federal Housing Administration program. A VA loan is a mortgage loan on approved property made to a qualified veter- an. One advantage of these programs is a relatively low down payment. In most cases, VA loans don’t require any down payment. Other criteria may be more strict than a conventional loan. Talk to your Realtor® about whether there are certain types of loans you should (or shouldn’t) pursue.
Mortgage Lenders
While most lenders are very reliable and reputable, some lenders may be less reliable than others in your market area. Asking buyers to identify the lender they intend to use has two benefits. First, buyers are encouraged to research lenders prior to submitting an offer. Since the mortgage contingency paragraph of the Agreement gives buyers a limited period of time to submit their actual application (which can’t be done until their offer has been accepted), buyers who have identified lenders ahead of time should have an easier time making this deadline.
Second, having a lender identified in the offer may also help sellers determine the likelihood that a trans- action will make it through closing with no financing delays. If a seller is aware that a particular lender tends to have problems with delaying, or even canceling, planned closings, the seller may be less likely to want to accept that offer.
Including the name of a mortgage lender or lenders is not mandatory. Buyers should consult their Realtor® to determine whether naming the lender would be beneficial. Where an offer is presented without a named lender, sellers should discuss with their Realtor® whether or not to request that the buyer identify one.
Mortgage Rates
There are actually two interest rates stated in the Agreement. The first is the rate that the buyer is hoping to get and the second is the highest rate the buyer is willing to accept. As with other elements of this contingency, be realistic. If a mortgage is approved with the terms stated in the Agreement but the buyer fails to accept or “lock in” that loan with an acceptable interest rate, the buyer may be in default if the rates later rise above the stated interest rate cap and the buyer refuses to accept the loan at that time.
Federal regulations require mortgage lenders to provide buyers with a Loan Estimate (LE) statement within three business days from receipt of the buyer’s mortgage application. Settlement cannot occur within 7 days of the early disclo- sure or within 3 days of redisclosure. Redisclosure is only permitted if there is a change in circumstances. For example, if the buyer fails to lock in the interest rate quoted in the LE within 10 days, that is a change in circumstances, and the lender may issue a revised LE. The Agreement requires the buyer to lock in his interest rate 15 days before settlement if the lender gives the buyer the chance because interest rates can have a large impact on the APR.
Fixed Rate vs. Adjustable/Variable Rate Loans
Interest on mortgage loans can be at a fixed rate, which means the monthly payment never changes except for possible increases in taxes and insurance.
- OR -
A loan may be an adjustable-rate mortgage (“ARM”) or variable-rate mortgage (“VRM”), which means the monthly payment on the mortgage loan may change. The calculation of these changes is complicated and should be clearly understood before choosing this type of loan.
What are Points?
“Points” are the fees that the mortgage lender charges buyers for providing certain services. One “point” is equal to one percent of the mortgage amount. The Agreement asks buyers to put in a maximum num- ber of points they are willing to pay often called a “cap.” For example, if points are “capped” at three
for a $100,000.00 loan, the buyer will not be required to buy the property if a lender offers a mortgage commitment requiring the payment of more than three points, or $3,000.00. Buyers pay points up front in cash as part of closing costs; the money is not financed as part of the mortgage loan.
Two Important Deadlines
The Mortgage Contingency paragraph of the Agreement has two big deadlines. The first deadline is the time in which the buyer has to submit a mortgage application. The second deadline is the date by which the buyer must have an answer from the mortgage lender to give to the seller.
The dates should be chosen carefully because it is not just the deadline for the mortgage lender to give approval for the loan the seller or the seller’s broker also must receive a copy of the lender’s decision by this date. Remember that if the buyer doesn’t meet these deadlines the buyer may be in default and the seller may have the option to cancel the Agreement and keep the buyer’s deposit.
Conditional Approvals
Be careful if a mortgage loan will be conditioned on something that isn’t provided for in the Agreement. If the lender has requirements or conditions that are not part of the Agreement, then the seller may have the right to terminate the Agreement. For any condition on the approval (such as verifying income or selling or settling on another property), buyers have 7 days after the deadline to satisfy these conditions. Certain types of routine conditions that can only be met at or near settlement don’t give sellers the right to terminate, however. Such routine conditions might include a final verification of employment or providing proof of property insurance.
As a buyer, if you know you must sell your current home before purchasing a new one consider making your offer contingent on the sale or settlement of this other property. PAR offers several addenda for this purpose, depending on your circumstances.
Lender Requirements
Every lender has slightly different requirements for approving a loan. These requirements will vary depending on the type of loan being offered and are often very dependent on the buyer’s current finan- cial status and financial history.
The value of the property is another major element that goes into the lender’s decision. In the unlikely event that a buyer stops making payments and the lender has to foreclose on the property, that lender wants to be sure that the value of the property is high enough that the lender could sell the property and get its money back. Before lending a buyer the money to purchase the property, the mortgage lender will almost certainly do an appraisal to make sure the house meets the lender’s standards for the loan. After appraising the property the lender will decide the maximum amount of money that may be borrowed.
In most mortgage transactions, Federal lending regulations prohibit lenders from charging fees for appraisals to potential buyers before that buyer has indicated that he or she agrees to the terms presented in the Loan Estimate. Until that time, potential buyers may only be charged a reasonable fee for the credit report done by the lender. After accepting the terms of the Loan Estimate and indicating an intent to move forward with the mortgage, the buyer will likely be required to promptly order (and pay for) an appraisal on the property. It is essential that the lender’s timelines be followed so that settlement can occur as scheduled.
Keep in mind that the appraised value of the property may be different from the agreed-upon purchase price. Sometimes the appraised value will be too low for the lender to approve the entire amount of the mortgage that has been requested. If the buyer still wants to purchase the property, it will be neces- sary to find additional money to make up the difference.
What if the Loan Is Not Approved?
If a mortgage is approved within the terms specified in the Agreement, the buyer must proceed with the transaction. If the buyer meets all of the obligations spelled out in this contingency and is still turned down for a mortgage, the terms of the Agreement state that the buyer will not have to go through with the purchase.
Remember that this is only true where the buyer has, in fact, done everything required by the terms of the Agreement. This means the buyer must have completed the application and locked in the interest rate within the time given, the application had the same terms as were listed in the Agreement, the buyer was honest with the seller and mortgage lender regarding buyer’s finances, and the buyer has fully cooperated with the lender during the processing of the application. If the buyer has failed to meet the obligations agreed to in the Agreement, he would likely be in default if the loan is not approved.
9 - Change in Buyer's Financial Status
The successful completion of the transaction depends in large part upon the financial status of the buyer. In the time it takes to complete the sale of a home, unexpected changes in the buyer’s finances could take place. If any of those changes may affect the buyer’s ability to purchase the property, then he is obligated to inform the seller, and any lenders who received mortgage applications, in writing. Buyers should be aware that applying for or incurring additional financial obligations during this time can affect their eligibility for financing along the terms specified in the Agreement. It is best to hold off on major purchases until after the transaction has closed.
The successful completion of the transaction depends in large part upon the financial status of the buyer. In the time it takes to complete the sale of a home, unexpected changes in the buyer’s finances could take place. If any of those changes may affect the buyer’s ability to purchase the property, then he is obligated to inform the seller, and any lenders who received mortgage applications, in writing. Buyers should be aware that applying for or incurring additional financial obligations during this time can affect their eligibility for financing along the terms specified in the Agreement. It is best to hold off on major purchases until after the transaction has closed.
10 - Seller Representations
This paragraph explains what the seller knows about the type of water and sewage systems serv-
ing the property, whether there are historic preservation or land use restrictions on the property and whether the seller has received any notices about the property from any government or public authority. Note that there are additional explanatory Notices included in the Agreement for most types of on-lot sewer systems and land use restrictions.
The buyer agent often fills in this section with information provided by the seller in other forms, but
the seller should always double-check these items. Once a seller accepts the Agreement the seller is responsible for these statements. Remember that if the buyer has special needs or questions on these issues the buyer should still do inspections and contact a tax professional or attorney, if needed.
The Seller Disclosure Law
Pennsylvania law requires that before an Agreement is signed, the seller in most residential real estate transfer must make certain disclosures regarding the property. A residential real estate transfer is defined as a sale, exchange, installment sales contract, lease with an option to buy, grant or other transfer of an interest in real property of between one and four dwelling units. The disclosures must be made to all potential buyers in a form defined by the law. There are several exceptions where the disclosures do not have to be made:
1. Transfers that are the result of a court order;
2. Transfers to a mortgage lender that result from a buyer’s default and sbusequent foreclosure sales that result from default;
3. Transfers from a co-owner to one or more other co-owners;
4. Transfers made to a spouse or a direct descendant;
5. Transfers between spouses that result from divorce, legal separation or property settlement;
6. Transfers by a corporation, partnership or other association to its shareholders, partners or other equity owners as part of a plan of liquidation;
7. Transfer of a property to be demolished or converted to non-residential use;
8. Transfer of unimproved real property;
9. Transfers by a fiduciary during the administration of a decedent estate, guardianship, conservator- ship or trust;
10. Transfers of new construction that has never been occupied when: 1) the buyer has received a one-year warranty covering the construction, 2) the building has been inspected for compliance with the applicable building code or, if none, a nationally recognized model building code, and 3) a certifi- cate of occupancy or a certificate of code compliance has been issued for the dwelling.
In addition to these exceptions, disclosures for condominiums and cooperatives are limited to the seller’s particular unit(s). Disclosures regarding common areas or facilities are not required, as those elements are already addressed in the laws that govern the resale of condominium and cooperative interests. Buyers should be aware that the Seller Disclosure Law does not require the seller to do any investigation; the only obligation is for the seller to disclose what they know. If the buyer has any questions about the soundness or function of the property or any part of it, they should consider a home inspection.
Public and/or Private Notices and Assessments
The term “assessment” is used in the Agreement of Sale and in this booklet to refer to some fee or cost paid by a homeowner for an improvement related to the property. For example, a local government might impose an assessment on residents to pay for new sidewalks or sewer pipes, while a condominium or homeowner association might levy an assessment on property owners to pay for the cost of maintaining the public areas overseen by the association.
The term “assessment” is not meant to include property tax assessments or relate to property values. The buyer should research local assessments and tax rates during the process of searching for a suitable home, before submitting an offer. The seller is required to pay for any assessments made prior to the acceptance of the Agreement, and is also responsible to correct violations of zoning, building or safety ordinances when notices of violation have been provided to the seller before the Agreement is signed. Even if the assessment or violation hasn’t yet been received, if the seller knows that something will be coming it must be disclosed to the buyer in advance.
This paragraph explains what the seller knows about the type of water and sewage systems serv-
ing the property, whether there are historic preservation or land use restrictions on the property and whether the seller has received any notices about the property from any government or public authority. Note that there are additional explanatory Notices included in the Agreement for most types of on-lot sewer systems and land use restrictions.
The buyer agent often fills in this section with information provided by the seller in other forms, but
the seller should always double-check these items. Once a seller accepts the Agreement the seller is responsible for these statements. Remember that if the buyer has special needs or questions on these issues the buyer should still do inspections and contact a tax professional or attorney, if needed.
The Seller Disclosure Law
Pennsylvania law requires that before an Agreement is signed, the seller in most residential real estate transfer must make certain disclosures regarding the property. A residential real estate transfer is defined as a sale, exchange, installment sales contract, lease with an option to buy, grant or other transfer of an interest in real property of between one and four dwelling units. The disclosures must be made to all potential buyers in a form defined by the law. There are several exceptions where the disclosures do not have to be made:
1. Transfers that are the result of a court order;
2. Transfers to a mortgage lender that result from a buyer’s default and sbusequent foreclosure sales that result from default;
3. Transfers from a co-owner to one or more other co-owners;
4. Transfers made to a spouse or a direct descendant;
5. Transfers between spouses that result from divorce, legal separation or property settlement;
6. Transfers by a corporation, partnership or other association to its shareholders, partners or other equity owners as part of a plan of liquidation;
7. Transfer of a property to be demolished or converted to non-residential use;
8. Transfer of unimproved real property;
9. Transfers by a fiduciary during the administration of a decedent estate, guardianship, conservator- ship or trust;
10. Transfers of new construction that has never been occupied when: 1) the buyer has received a one-year warranty covering the construction, 2) the building has been inspected for compliance with the applicable building code or, if none, a nationally recognized model building code, and 3) a certifi- cate of occupancy or a certificate of code compliance has been issued for the dwelling.
In addition to these exceptions, disclosures for condominiums and cooperatives are limited to the seller’s particular unit(s). Disclosures regarding common areas or facilities are not required, as those elements are already addressed in the laws that govern the resale of condominium and cooperative interests. Buyers should be aware that the Seller Disclosure Law does not require the seller to do any investigation; the only obligation is for the seller to disclose what they know. If the buyer has any questions about the soundness or function of the property or any part of it, they should consider a home inspection.
Public and/or Private Notices and Assessments
The term “assessment” is used in the Agreement of Sale and in this booklet to refer to some fee or cost paid by a homeowner for an improvement related to the property. For example, a local government might impose an assessment on residents to pay for new sidewalks or sewer pipes, while a condominium or homeowner association might levy an assessment on property owners to pay for the cost of maintaining the public areas overseen by the association.
The term “assessment” is not meant to include property tax assessments or relate to property values. The buyer should research local assessments and tax rates during the process of searching for a suitable home, before submitting an offer. The seller is required to pay for any assessments made prior to the acceptance of the Agreement, and is also responsible to correct violations of zoning, building or safety ordinances when notices of violation have been provided to the seller before the Agreement is signed. Even if the assessment or violation hasn’t yet been received, if the seller knows that something will be coming it must be disclosed to the buyer in advance.
11 - Waiver of Contingencies
Many contingencies in the Agreement of Sale specify time periods within which the parties must act. The waiver of contingencies paragraph reminds both the buyer and seller that failure to meet a deadline will result in the waiver of rights under that contingency. For example, if the buyer misses a dead- line to request repairs after an inspection, the buyer will be deemed to have accepted the property with no repairs. If there is any reason why the preprinted contingency time periods might be problematic be sure to let your Realtor® know so those times can be adjusted.
Many contingencies in the Agreement of Sale specify time periods within which the parties must act. The waiver of contingencies paragraph reminds both the buyer and seller that failure to meet a deadline will result in the waiver of rights under that contingency. For example, if the buyer misses a dead- line to request repairs after an inspection, the buyer will be deemed to have accepted the property with no repairs. If there is any reason why the preprinted contingency time periods might be problematic be sure to let your Realtor® know so those times can be adjusted.
12 - Buyer's Due Diligence/Inspections
In most residential transactions, sellers are required to provide buyers with a Seller’s Property Disclosure Statement listing known problems with the property. Exceptions to this general rule are listed above and on the PAR Seller’s Property Disclosure Statement (Form SPD).
Although this form covers many important aspects of the property, buyers should not rely exclusively on this form in determining the condition of the property. For one thing, the form only asks sellers to disclose conditions they are aware of. There might be many things that would concern a buyer (and the seller, for that matter), but are unknown by the seller. For example, sellers might not know of a weak spot in the roof if it hasn’t started leaking; similarly, they might not know that a septic system is getting close to needing a repair if it hasn’t started causing problems.
Buyers should strongly consider hiring professional inspectors to review the major elements and sys- tems of the home. This might take the form of obtaining a full “home inspection” of the property, hiring a series of specialists to inspect individual systems (for example, a roofer for the roof, a plumber for the plumbing, etc.), or some combination of the two. Keep in mind that the Agreement requires that inspections be done by “licensed or otherwise qualified inspectors,” so buyers should always be sure to check out the qualifications of inspectors before hiring them.
In the “Inspections” paragraph the seller agrees to allow access to the property for all inspections agreed upon in the Agreement. It also states that the utilities will be on for the inspections and reserves the buyers’ right to a pre-settlement inspection of the property.
Although buyers do have the right to attend inspections, buyers are there just as observers. This isn’t the time to bring along family members for a tour of the home or to ask a decorator to measure for new curtains. Similarly, the right to a pre-settlement inspection is generally meant to provide an opportunity to look through the property just before settlement to make sure that everything is in the condition agreed to in the Agreement. If the buyers have any other need to enter the property before settlement they should work out the arrangements ahead of time with the seller.
Are Inspections Required?
When making an offer, it is better to err on the side of caution. As a buyer, if you are unsure of whether or not you will need any inspections, elect to have them done. Reserving the option to have inspec- tions lets buyers decide later whether they want them. However, if the buyers waive the right to inspections in the Agreement they can’t come back later to have them done.
Remember that requesting and allowing inspections are negotiable terms. If sellers have a choice between two similar offers they may opt for the offer that is contingent upon fewer inspections. At the same time, however, when a buyer waives the right to an inspection it means that the property will be accepted in its present condition, regardless of what that condition is. This could be very expensive for the buyer if certain conditions need to be fixed after moving into the property. In many ways, deciding on what inspections to have may be one of the most important elements of the Agreement.
Sometimes a potential buyer may want to conduct certain types of “inspections” before even making an offer. For example, it is often a good idea to drive around a neighborhood and even talk to a few neighbors before making an offer. This can help identify issues such as ease of access to the neighborhood, noise from nearby roads or factories, and many other concerns that might affect the decision. Some buyers might even want to inspect the property before making an offer. Talk to your Realtor® to determine whether this is right for you. Doing these sorts of inspections before making an offer can save buyers and sellers a lot of time if it turns out that there is something a buyer doesn’t like.
How long will the inspections take?
Buyers should ask their Realtor® for an idea of how long it will take to get the inspections done. All of the inspections are subject to a “Contingency Period” of a certain number of days. The Contingency Period will be the same for all inspections . Remember to leave a buffer so there is enough time to complete everything within the time given. See the appropriate Notices in the Agreement for helpful infor- mation on property conditions and some information on certain inspections.
HOME/PROPERTY AND ENVIRONMENTAL HAZARDS INSPECTION
The Agreement’s Home/Property and Environmental Hazards Inspection provides for inspections of pretty much anything and everything related to the property not covered by later inspections. Some of the inspections often performed as a single system inspection or as part of a full home inspection are listed below.
• Electrical system
• Environmental issues
• General appliance condition
• Heat/air conditioning (HVAC)
• Mechanical systems
• Plumbing
• Roof
• Mold and indoor air quality
• Property boundaries
• Building codes compliance
• Site features (condition of driveway, sidewalks, etc.) • Structural condition
• Water penetration
The Pennsylvania Home Inspection Law applies to “residential real estate transfers,” which is a transfer of between one and four dwelling units. The law also sets certain criteria for home inspectors. Below are definitions of some of the common terms used in a home inspection.
Home Inspection:
A non-invasive, visual examination of some combination of the mechanical, electrical or plumbing systems or the structural and essential components of a residential dwelling designed to identify material defects in those systems and components. The term does not include an examina- tion that is limited to inspection for, or of, one or more of the following: wood-destroying insects, under- ground tanks and wells, septic systems, swimming pools and spas, alarm systems, air and water qual- ity, tennis courts and playground equipment, pollutants, toxic chemicals and environmental hazards.
Simply put, a “home inspection” is an inspection that covers multiple systems of the property in a single inspection. For example, if one inspector looks at the roof, plumbing, and heating systems during a single inspection, it is a “home inspection” according to the law. If three different inspectors look at each item separately, those single-system inspections are not “home inspections” as defined by the law.
Home Inspection Report:
A written report on the results of a home inspection. The Report must include a description of the scope of the inspection and a description of any material defects noted during the inspection, along with any recommendation that certain experts be retained to determine the extent of the defects and any corrective action that should be taken.
Home Inspector:
An individual who performs a home inspection
National Home Inspectors Association:
Any national association of home inspectors that: (1) is operated on a not-for-profit basis and is not operated as a franchise, 2) has members in more than ten states, 3) requires that a person may not become a full member unless the person has per- formed or participated in more than 100 home inspections and has passed a recognized or accredited examination testing knowledge of the proper procedures for conducting a home inspection, and 4) requires that its members comply with a code of conduct and attend continuing professional education classes as an ongoing condition of membership.
If the buyer elects to have a home inspection, make sure the home inspector is properly qualified and operates in compliance with the law. Keep in mind that the law gives certain protection if the inspector provides a “written representation” regarding the home inspector’s qualifications, so be sure to “get it
in writing” when selecting an inspector. When hiring other inspectors, check out their qualifications and background, as well as whether they have any required local licenses and permits (for example, certain cities or municipalities might require that a plumber get a local license before being allowed to work).
Material Defect:
A problem with a residential real property or any portion of it that would have a significant adverse impact on the value of the property or that involves an unreasonable risk to people on the property.
WOOD INFESTATION
It’s always a good idea to have the property inspected for wood-destroying insect infestation (termites) and it is usually required by mortgage lenders. Remember that it will be the buyer’s responsibility to request treatment or repairs if they are desired.
DEEDS, RESTRICTIONS & ZONING
Later in the Agreement it states that the seller will provide good title to the buyer, but that the title will be subject to existing deed restrictions and other types of existing restrictions. Buyers will probably want to be sure that any existing restrictions don’t interfere with how they expect to use the property. For example, a buyer who wants to install an in-ground pool may not be able to if it turns out the elec- tric company has an easement for an underground power line that runs right through the yard. Buyers can use this inspection to look at the deed through a title search, as well as examining other property restrictions including zoning issues.
WATER SERVICE
If buyers are concerned about the status of the water system serving the property, they should elect to have the system inspected. This is often elected when the property is served by an on-site system, usually a private well.
There are no state or federal standards for well water, so the buyer may want to have a reputable water testing company analyze the quality of the water and provide a report listing any contamination. Buyers should speak with the testing company about what types of tests it will run and what contaminants it can detect. Different testing may be necessary for different areas. Buyers might also wish to have an inspector test the flow rate of the well, along with the physical structure of the well and its components.
RADON
Radon is a radioactive gas produced in the ground by the natural decay of radium and uranium. Extended exposure to high levels of radon can pose serious health risks. If radon gas has been detected on the property through past testing the seller must disclose this information in the Seller’s Property Disclosure Statement. If no Disclosure Statement is required in your transaction, it may be prudent for a buyer to elect this inspection.
If radon is discovered to be at or higher than the level that is acceptable to the buyer, the buyer can decide which choice to make within the inspection process.
ON-LOT SEWAGE
The inspection in this paragraph relates only to testing an on-lot sewage system such as a septic system, which can be tested in various ways including by a hydraulic load test. It’s a good idea to have the sewage disposal system inspected unless current data and/or documentation is available to verify the current status of the system.
If the property has access to public sewer and buyers want to have an inspector check the flow and condition of the sewage lines it would be done under the Home/Property inspection found earlier in the Agreement.
If the inspection shows that the existing system is defective but can be repaired without expansion or replacement, the parties proceed under the inspection process.
Unlike the other inspection contingencies, there is a second step to this contingency. If fixing the defects identified in the report would require expansion or replacement of the current system the seller decides what action to take. The default terms of the Agreement give the seller 25 days to get further testing and present a Written Corrective Proposal (more on this below) to the buyer about expanding or replacing the system. The buyer then has the option to accept the terms of the Proposal, take the property with no changes, or terminate the Agreement and get back any deposit monies.
PROPERTY AND FLOOD INSURANCE
Almost every buyer will want or need to obtain insurance coverage for the property. For buyers getting mortgage financing the lender may require a minimum amount of insurance coverage. Even for a cash buyer who isn’t required to get insurance by a lender it is certainly a good idea to insure such a large investment against loss or damage.
Just like mortgage lenders have varying standards for making loans, insurers may have different standards for deciding whether to insure a particular property. These standards will often include the property’s insurance history (whether there have been claims by the current or prior owners), the buyer’s insurance history (whether the buyer has filed claims in prior homes), the property’s condition and value, and the buyer’s credit history.
The Property and Flood Insurance inspection gives buyers the option to make the Agreement contin- gent on being able to obtain suitable insurance coverage. Electing this paragraph requires the buyer to make an application for insurance within the stated Contingency Period. If buyers are unable to obtain acceptable insurance within the Contingency Period they will have the option to terminate the Agreement without being in default.
In 2012, changes to the National Flood Insurance Program (NFIP) included re-mapping of flood plains and removal of federal subsidies for the cost of flood insurance premiums. Buyers are cautioned to get quotes from several reputable sources based on current maps and not to rely on the seller’s current need for or cost of flood insurance. Buyers should not delay in seeking quotes on the cost of insurance, as the estimates may take several weeks to complete.
Most insurers will be able to provide a reliable answer to an insurance application within a few days. Keep in mind, however, that an insurer might make a preliminary decision conditioned on the result of an inspection or further research by the insurer. If the buyer obtains a conditional approval, the parties may wish to amend this paragraph to permit further discussion if the insurer changes its decision.
PROPERTY BOUNDARIES
If there isn’t a valid legal description of the property in the deed, a survey may be required by the title company or attorney performing the title abstract. If so, the seller will pay for it. A buyer who is concerned about the precise location of the boundaries of the property may wish to obtain (and pay for) a survey unless the property was recently surveyed and the markers/stakes remain. Without a survey it is unlikely the sellers or Realtors® involved in the transaction will know precisely where the boundary lines are located.
LEAD-BASED PAINT HAZARDS
The law provides buyers the right to carry out a risk assessment and/or inspection for the presence of lead-based paint and lead-based paint hazards in properties built prior to 1978. This paragraph allows the buyer to elect such an inspection. You should receive a pamphlet titled Protect Your Family From Lead in Your Home and a disclosure from the seller about the seller’s knowledge of the lead-based paint on the property if the property was built before 1978.
13 - Inspection Contingencies
If the buyer decides to have any inspections, the Agreement of Sale lays out a process of how to proceed when the time for inspections (called the “Contingency Period”) is over.
This process in the Agreement of Sale requires the buyers to give a copy of all inspection reports to the seller with the buyer’s decision to accept the Property in the condition reported by the inspector(s), terminate the Agreement and get back any deposits, or suggest another solution. Buyers make this suggestion by providing a “Written Corrective Proposal” to the seller, which lists the issues the buyer would like to have addressed and what actions they would like the seller to take.
In most instances, buyers are asking for repairs to the property, some sort of a credit or “seller
assist” towards the cost of repairs, or a reduction in the sale price of the property. Various other alternatives may exist, but whatever the buyers wish to have done should be stated with some specificity in their Written Corrective Proposal.
There are no specific requirements for what a Written Corrective Proposal must look like, nor what must be in the Proposal. PAR produces a form called the Buyer’s Reply to Inspections/Reports (Form BRI) that can often be used for this purpose, but buyers may create their own Proposals if desired. Negotiation during this period may be as formal or informal as the parties like, so long as the final terms of the agreement are put in writing and signed by the parties. Whatever the format, buyers can make the terms of the Proposal as specific as they would like. Depending on the context, this could include things like the name of the contractor and the methods used to do the work.
After receiving the Proposal, the buyer and seller have a certain period of time to decide what to do with the buyers’ requests. If the seller decides to complete everything as requested in the Proposal the buyers must move forward with the purchase of the property. If the seller chooses to not do everything in the Proposal the buyer and seller have a chance to try to negotiate a solution that works for both. If the time period for negotiation ends, and the parties haven’t reached a mutually acceptable written agreement, then the buyer will have a chance to terminate the Agreement.
If the buyer decides to have any inspections, the Agreement of Sale lays out a process of how to proceed when the time for inspections (called the “Contingency Period”) is over.
This process in the Agreement of Sale requires the buyers to give a copy of all inspection reports to the seller with the buyer’s decision to accept the Property in the condition reported by the inspector(s), terminate the Agreement and get back any deposits, or suggest another solution. Buyers make this suggestion by providing a “Written Corrective Proposal” to the seller, which lists the issues the buyer would like to have addressed and what actions they would like the seller to take.
In most instances, buyers are asking for repairs to the property, some sort of a credit or “seller
assist” towards the cost of repairs, or a reduction in the sale price of the property. Various other alternatives may exist, but whatever the buyers wish to have done should be stated with some specificity in their Written Corrective Proposal.
There are no specific requirements for what a Written Corrective Proposal must look like, nor what must be in the Proposal. PAR produces a form called the Buyer’s Reply to Inspections/Reports (Form BRI) that can often be used for this purpose, but buyers may create their own Proposals if desired. Negotiation during this period may be as formal or informal as the parties like, so long as the final terms of the agreement are put in writing and signed by the parties. Whatever the format, buyers can make the terms of the Proposal as specific as they would like. Depending on the context, this could include things like the name of the contractor and the methods used to do the work.
After receiving the Proposal, the buyer and seller have a certain period of time to decide what to do with the buyers’ requests. If the seller decides to complete everything as requested in the Proposal the buyers must move forward with the purchase of the property. If the seller chooses to not do everything in the Proposal the buyer and seller have a chance to try to negotiate a solution that works for both. If the time period for negotiation ends, and the parties haven’t reached a mutually acceptable written agreement, then the buyer will have a chance to terminate the Agreement.
14 - Titles, Surveys, and Costs
Title to the Property
The seller will transfer ownership of the property to the buyer at settlement in the form of a deed. This is known as “taking title to the property.” Buyer must request a title search and is encouraged to obtain title insurance; both are generally required by mortgage lenders.
The purpose of a title search is to research the history of the property to determine if there are any financial liens or claims of ownership to the property beyond the seller’s ownership. If the title search reveals that the seller can’t give “good and marketable title” free of other liens or claims the buyer may terminate the sale and have all deposit monies returned.
Title insurance is meant to protect against claims or liens that may be discovered after the purchase
is complete. For example, if a lien wasn’t properly filed against the property and is only discovered sev- eral years after purchasing the property, a title insurance policy should pay some or all of the costs of addressing that problem. There are a number of variations on title insurance, including some policies that cover certain property defects or the failure of prior owners to obtain proper permits for work done to the property. Buyers should talk to their title insurer about the extent of protection offered by the title insur- ance policy.
It is assumed that all rights to the property (sometimes called a “bundle of rights”), including those above and below the ground, transfer with the property unless the Agreement specifies otherwise. If the Buyer and Seller know that not all of these rights will transfer - such as rights for coal mining or oil and gas drilling they should make sure the Agreement explains which rights will be transferred and which rights will not. There is a PAR form for this purpose.
If the property is in an area where coal has been extracted or where the rights to coal have been transferred separately from the rights to surface land, the legally required notice in Paragraph 17(H) informs the buyer that certain below-ground rights (the rights to the coal that may be under your property) might not be transferred with the property. It also advises buyers that damage may occur as a result of mining activity.
CAUTION: The seller’s requirement to transfer “marketable” title at settlement does not mean that there are no easements or other restrictions that affect the use of the property. An easement is a right of access over or on property for a specific use. For exam- ple, utility companies frequently have easements giving them access to install and maintain their lines on privately owned property. Deed restrictions and restrictive covenants may also limit how a property may be used or what may be placed on the property. Buyers concerned with the impact that easements and restrictions will have on their use of the property should find out if any exist before signing the Agreement of Sale, or they should make it one of the things they check as part of the Deeds, Restrictions.
Title to the Property
The seller will transfer ownership of the property to the buyer at settlement in the form of a deed. This is known as “taking title to the property.” Buyer must request a title search and is encouraged to obtain title insurance; both are generally required by mortgage lenders.
The purpose of a title search is to research the history of the property to determine if there are any financial liens or claims of ownership to the property beyond the seller’s ownership. If the title search reveals that the seller can’t give “good and marketable title” free of other liens or claims the buyer may terminate the sale and have all deposit monies returned.
Title insurance is meant to protect against claims or liens that may be discovered after the purchase
is complete. For example, if a lien wasn’t properly filed against the property and is only discovered sev- eral years after purchasing the property, a title insurance policy should pay some or all of the costs of addressing that problem. There are a number of variations on title insurance, including some policies that cover certain property defects or the failure of prior owners to obtain proper permits for work done to the property. Buyers should talk to their title insurer about the extent of protection offered by the title insur- ance policy.
It is assumed that all rights to the property (sometimes called a “bundle of rights”), including those above and below the ground, transfer with the property unless the Agreement specifies otherwise. If the Buyer and Seller know that not all of these rights will transfer - such as rights for coal mining or oil and gas drilling they should make sure the Agreement explains which rights will be transferred and which rights will not. There is a PAR form for this purpose.
If the property is in an area where coal has been extracted or where the rights to coal have been transferred separately from the rights to surface land, the legally required notice in Paragraph 17(H) informs the buyer that certain below-ground rights (the rights to the coal that may be under your property) might not be transferred with the property. It also advises buyers that damage may occur as a result of mining activity.
CAUTION: The seller’s requirement to transfer “marketable” title at settlement does not mean that there are no easements or other restrictions that affect the use of the property. An easement is a right of access over or on property for a specific use. For exam- ple, utility companies frequently have easements giving them access to install and maintain their lines on privately owned property. Deed restrictions and restrictive covenants may also limit how a property may be used or what may be placed on the property. Buyers concerned with the impact that easements and restrictions will have on their use of the property should find out if any exist before signing the Agreement of Sale, or they should make it one of the things they check as part of the Deeds, Restrictions.
15 - Notices, Assessments, and Municipal Requirements
Notices and Assessments
The seller is required to provide to the buyer any notices of assessments or violations received after the Agreement has been signed by both parties , along with notice of whether the seller intends to pay the assessments and/or fix the violations. If the seller does not pay any new assessments or correct any new violations the buyer then has a choice to accept the property (and pay the assessments or correct the violations) or terminate the sale and get back all deposit monies.
Certificate of Occupancy or Use and Occupancy Permit
In some municipalities there is a requirement to obtain a “certificate of occupancy” or a “use and occupancy permit” when a property is sold. This process may include the municipality performing some sort of a physical inspection and reporting any violations of local ordinances. Depending on the ordinances, some or all of the violations may need to be fixed before settlement or within a certain period of time after settlement. If the property has no violations, or if the property is brought into compliance with the ordinances, the owner will receive this certificate/permit.
If any violations are found during this municipal inspection the seller will decide whether to fix the violations. If the seller agrees to the appropriate repairs the buyer must move forward with the purchase; if not, the buyer has the choice to accept the temporary certificate issued by the municipality and make the repairs or to terminate the agreement and get back all deposit monies.
Unlike most other inspections, the results of these municipal inspections might be given to the seller, not the buyer. Accordingly, a buyer may not realize that a prob- lem exists until the seller shares the results of the inspection. To encourage sellers to inform buyers of any problems as soon as possible, the Agreement states that if the seller fails to notify the buyer within the agreed upon time period the seller is automatically required to do - and pay for all the repairs called for in the report.
Notices and Assessments
The seller is required to provide to the buyer any notices of assessments or violations received after the Agreement has been signed by both parties , along with notice of whether the seller intends to pay the assessments and/or fix the violations. If the seller does not pay any new assessments or correct any new violations the buyer then has a choice to accept the property (and pay the assessments or correct the violations) or terminate the sale and get back all deposit monies.
Certificate of Occupancy or Use and Occupancy Permit
In some municipalities there is a requirement to obtain a “certificate of occupancy” or a “use and occupancy permit” when a property is sold. This process may include the municipality performing some sort of a physical inspection and reporting any violations of local ordinances. Depending on the ordinances, some or all of the violations may need to be fixed before settlement or within a certain period of time after settlement. If the property has no violations, or if the property is brought into compliance with the ordinances, the owner will receive this certificate/permit.
If any violations are found during this municipal inspection the seller will decide whether to fix the violations. If the seller agrees to the appropriate repairs the buyer must move forward with the purchase; if not, the buyer has the choice to accept the temporary certificate issued by the municipality and make the repairs or to terminate the agreement and get back all deposit monies.
Unlike most other inspections, the results of these municipal inspections might be given to the seller, not the buyer. Accordingly, a buyer may not realize that a prob- lem exists until the seller shares the results of the inspection. To encourage sellers to inform buyers of any problems as soon as possible, the Agreement states that if the seller fails to notify the buyer within the agreed upon time period the seller is automatically required to do - and pay for all the repairs called for in the report.
16 - Condominium/Planned Community (Homeowner Association) Notice
There are a number of differences between a “standard” residential property and one that is part of a condominium or planned community. Generally speaking, a condominium owner only owns the interi- or area of his or her “unit.” The owner also owns, with all other owners, the property surrounding the units, which is called the “common area.” Owners pay a monthly fee to cover maintenance and repairs to the common areas, which generally include sidewalks, parking areas, landscaping, swimming pools and the exteriors of the buildings.
A planned community is similar to a condominium except the owner usually owns the building and the land directly underneath it. Most of the rest of the planned community would be common areas owned by all of the owners and maintained by a homeowner association. Like the condominium, a monthly fee is generally assessed for upkeep of the common areas.
The condominium or homeowner association usually has a board of directors made up of owners. The board makes rules and regulations governing the use of the common areas and is also responsible for overseeing the association’s finances.
When a newly-constructed house is being purchased, the Uniform Condominium Act and the Pennsylvania Uniform Planned Community Act require the seller (if also the declarant) to give the buyer a Public Offering Statement. These are slightly different requirements that are in place for the sale of an existing unit or house which, with some exceptions, obligate a seller to give a buyer a “cer- tificate of resale” along with the rules and regulations of the association before the Agreement can become binding. The certificate of resale contains a list of items that the buyer is entitled to review before settlement occurs. Buyers are given five days to review these documents and to terminate the sale if not satisfied for any reason. When purchasing a new unit in a condominium or a new house in a planned community, the developer (seller) is required to give you additional information and more time to review the documents. Ask your Realtor® for details.
A Word to the Wise
Many buyers are quite surprised to find out what sorts of limitations a condominium or homeowner association can enforce. Limitations can often include rules on choosing exterior paint color, putting up decorations and ornaments, landscaping, and other issues. Certain activities may also be restricted, such as parking, ball playing, and bicycle riding. To avoid surprises, buyers should learn as much as possible about the homeowner or condominium association restrictions BEFORE buying this type of property.
There are a number of differences between a “standard” residential property and one that is part of a condominium or planned community. Generally speaking, a condominium owner only owns the interi- or area of his or her “unit.” The owner also owns, with all other owners, the property surrounding the units, which is called the “common area.” Owners pay a monthly fee to cover maintenance and repairs to the common areas, which generally include sidewalks, parking areas, landscaping, swimming pools and the exteriors of the buildings.
A planned community is similar to a condominium except the owner usually owns the building and the land directly underneath it. Most of the rest of the planned community would be common areas owned by all of the owners and maintained by a homeowner association. Like the condominium, a monthly fee is generally assessed for upkeep of the common areas.
The condominium or homeowner association usually has a board of directors made up of owners. The board makes rules and regulations governing the use of the common areas and is also responsible for overseeing the association’s finances.
When a newly-constructed house is being purchased, the Uniform Condominium Act and the Pennsylvania Uniform Planned Community Act require the seller (if also the declarant) to give the buyer a Public Offering Statement. These are slightly different requirements that are in place for the sale of an existing unit or house which, with some exceptions, obligate a seller to give a buyer a “cer- tificate of resale” along with the rules and regulations of the association before the Agreement can become binding. The certificate of resale contains a list of items that the buyer is entitled to review before settlement occurs. Buyers are given five days to review these documents and to terminate the sale if not satisfied for any reason. When purchasing a new unit in a condominium or a new house in a planned community, the developer (seller) is required to give you additional information and more time to review the documents. Ask your Realtor® for details.
A Word to the Wise
Many buyers are quite surprised to find out what sorts of limitations a condominium or homeowner association can enforce. Limitations can often include rules on choosing exterior paint color, putting up decorations and ornaments, landscaping, and other issues. Certain activities may also be restricted, such as parking, ball playing, and bicycle riding. To avoid surprises, buyers should learn as much as possible about the homeowner or condominium association restrictions BEFORE buying this type of property.
17 - Taxes and Assessed Value
Currently, Pennsylvania property and school taxes are based on a home’s fair market value. These assessments are done on a county-wide basis and not upon the sale of the property. If the property owner or taxing authority (school district, township, etc.) disagree with the new assessment, both sides have certain rights of appeal. A successful appeal by either party could result in the taxes going up or down.
Currently, Pennsylvania property and school taxes are based on a home’s fair market value. These assessments are done on a county-wide basis and not upon the sale of the property. If the property owner or taxing authority (school district, township, etc.) disagree with the new assessment, both sides have certain rights of appeal. A successful appeal by either party could result in the taxes going up or down.
18 - Maintenance and Risk of Loss
It is a common misconception that a property is guaranteed to be in “good” condition at settlement. In reality, buyers are purchasing the property in the condition it is in at the time both parties sign (exe- cute) the Agreement of Sale unless the terms of the Agreement state otherwise. This means that if the buyer wants something to be fixed or replaced before settlement it should be in writing as a term of the Agreement or in an addendum.
Generally, the Agreement refers to the property as being in its “present condition” at the time the Agreement is signed. If the condition changes before settlement, after accounting for normal wear and tear (and any changes made as a result of the inspection contingency process), the Agreement says that seller can either correct the condition or credit the buyer the cost for the correction. If the seller fails to correct the condition or offer a credit, the buyer can terminate the sale.
Let’s use the refrigerator as an example and assume that it is included with the sale of the home. If, after the buyer submits an offer, a few small scratches appear on the door of the refrigerator then the Agreement places no obligation on the seller to do anything because that would be considered normal wear and tear. The seller is prohibited, however, from taking the refrigerator that the buyers think they are getting and replacing it with an older or less-expensive one (that is not present condition). If the refrigerator that the buyers are to receive breaks before settlement, then the seller must either repair it, replace it, or provide the buyer with a credit. If the seller fails to do any of those three things, then the buyer has the option to terminate the Agreement.
Where there is damage from a fire or any other sort of disaster (flood, tornado, etc.) which is not repaired or replaced prior to settlement, the buyer has the choice to accept the property with the sell- er’s insurance reimbursement, if any, or to terminate the Agreement and get any deposits returned.
It is a common misconception that a property is guaranteed to be in “good” condition at settlement. In reality, buyers are purchasing the property in the condition it is in at the time both parties sign (exe- cute) the Agreement of Sale unless the terms of the Agreement state otherwise. This means that if the buyer wants something to be fixed or replaced before settlement it should be in writing as a term of the Agreement or in an addendum.
Generally, the Agreement refers to the property as being in its “present condition” at the time the Agreement is signed. If the condition changes before settlement, after accounting for normal wear and tear (and any changes made as a result of the inspection contingency process), the Agreement says that seller can either correct the condition or credit the buyer the cost for the correction. If the seller fails to correct the condition or offer a credit, the buyer can terminate the sale.
Let’s use the refrigerator as an example and assume that it is included with the sale of the home. If, after the buyer submits an offer, a few small scratches appear on the door of the refrigerator then the Agreement places no obligation on the seller to do anything because that would be considered normal wear and tear. The seller is prohibited, however, from taking the refrigerator that the buyers think they are getting and replacing it with an older or less-expensive one (that is not present condition). If the refrigerator that the buyers are to receive breaks before settlement, then the seller must either repair it, replace it, or provide the buyer with a credit. If the seller fails to do any of those three things, then the buyer has the option to terminate the Agreement.
Where there is damage from a fire or any other sort of disaster (flood, tornado, etc.) which is not repaired or replaced prior to settlement, the buyer has the choice to accept the property with the sell- er’s insurance reimbursement, if any, or to terminate the Agreement and get any deposits returned.
19 - Home Warranties
A home warranty is like an insurance policy that covers some or all of the costs to repair or replace certain appliances or systems of a home. In some transactions a seller might elect to purchase a warranty that would cover the home after it is sold. Other times a buyer might want to purchase the warranty on his own. The types of warranties and their availability will vary from market to market, so check with your Realtor® if you think purchasing a home warranty might be useful.
A home warranty is like an insurance policy that covers some or all of the costs to repair or replace certain appliances or systems of a home. In some transactions a seller might elect to purchase a warranty that would cover the home after it is sold. Other times a buyer might want to purchase the warranty on his own. The types of warranties and their availability will vary from market to market, so check with your Realtor® if you think purchasing a home warranty might be useful.
20 - Recording
After the seller accepts the Agreement of Sale, but before settlement is complete, a buyer technically has an ownership interest in the property. In fact, buyers are sometimes known as “equitable owners” prior to settlement. Paragraph 20 states that the executed Agreement of Sale, which creates this ownership interest, may not be recorded at the courthouse. When settlement is complete, the new deed will be recorded in the public record as evidence of the buyer’s full ownership of the property.
After the seller accepts the Agreement of Sale, but before settlement is complete, a buyer technically has an ownership interest in the property. In fact, buyers are sometimes known as “equitable owners” prior to settlement. Paragraph 20 states that the executed Agreement of Sale, which creates this ownership interest, may not be recorded at the courthouse. When settlement is complete, the new deed will be recorded in the public record as evidence of the buyer’s full ownership of the property.
21 - Assignment
Occasionally, a buyer might not want his or her identity known to the seller. For example, an investor seeking to buy several homes on the same block might not want the sellers to know that the same buyer is interested in all the lots. In that sort of transaction the original offer might be submitted with the name of another person or company identified as the buyer. Once the contract is signed, the identified buyer would then “assign” the right to purchase the property to the true buyer via a separate contract.
This can cause problems for sellers, who might find that they are suddenly in a transaction with a buyer they wouldn’t have accepted had they known the buyer’s true identity from the beginning. To avoid this problem, the Agreement states that a buyer may not transfer or assign the Agreement of Sale to another buyer without the seller’s permission. That is, if the identified buyer doesn’t have the seller’s permission to make the assignment, the buyer must go forward with the purchase himself or risk being in default and losing all deposits.
If you know in advance that the right to purchase will be assigned you should talk to your Realtor®. The buyer may be required to pay additional transfer tax when assigning the right to purchase. Talk to an attorney and/or accountant about the potential impacts.
Occasionally, a buyer might not want his or her identity known to the seller. For example, an investor seeking to buy several homes on the same block might not want the sellers to know that the same buyer is interested in all the lots. In that sort of transaction the original offer might be submitted with the name of another person or company identified as the buyer. Once the contract is signed, the identified buyer would then “assign” the right to purchase the property to the true buyer via a separate contract.
This can cause problems for sellers, who might find that they are suddenly in a transaction with a buyer they wouldn’t have accepted had they known the buyer’s true identity from the beginning. To avoid this problem, the Agreement states that a buyer may not transfer or assign the Agreement of Sale to another buyer without the seller’s permission. That is, if the identified buyer doesn’t have the seller’s permission to make the assignment, the buyer must go forward with the purchase himself or risk being in default and losing all deposits.
If you know in advance that the right to purchase will be assigned you should talk to your Realtor®. The buyer may be required to pay additional transfer tax when assigning the right to purchase. Talk to an attorney and/or accountant about the potential impacts.
22 - Governing Law, Venue, and Personal Jurisdiction
Should a legal problem arise during the transaction that results in the filing of a lawsuit, the parties agree to file and defend the lawsuit within Pennsylvania courts, using Pennsylvania law.
Should a legal problem arise during the transaction that results in the filing of a lawsuit, the parties agree to file and defend the lawsuit within Pennsylvania courts, using Pennsylvania law.
23 - Foreign Investment in Real Property Tax Act of 1980
Typically, the transfer of an interest in real estate is a taxable event. FIRPTA permitted the Internal Revenue Service (IRS) to impose a tax on foreign persons upon the transfer of real estate located within the United States. A “foreign person” can be a nonresident alien individual, a foreign corpo- ration, a foreign partnership, a foreign trust or a foreign estate. The term does not apply to resident aliens. Foreign persons must inform buyers of their status and provide an affidavit setting forth the information needed to properly record the tax. When purchasing real estate from a foreign person, the buyers are required to act as withholding agents and withhold a percentage of the profit as tax. Failure to properly withhold could result in the buyer being liable for the tax, so it is wise to consult an attorney or accountant if involved in this type of transaction.
Typically, the transfer of an interest in real estate is a taxable event. FIRPTA permitted the Internal Revenue Service (IRS) to impose a tax on foreign persons upon the transfer of real estate located within the United States. A “foreign person” can be a nonresident alien individual, a foreign corpo- ration, a foreign partnership, a foreign trust or a foreign estate. The term does not apply to resident aliens. Foreign persons must inform buyers of their status and provide an affidavit setting forth the information needed to properly record the tax. When purchasing real estate from a foreign person, the buyers are required to act as withholding agents and withhold a percentage of the profit as tax. Failure to properly withhold could result in the buyer being liable for the tax, so it is wise to consult an attorney or accountant if involved in this type of transaction.
24 - Notice Regarding Convicted Sex Offenders (Megan's Law)
Pennsylvania law requires those convicted of certain sexual offenses to register with the State Police under a program commonly known as Megan’s Law. The purpose of Megan’s Law is to provide com- munity notification of the presence of certain individuals in a particular area. The State Police website (www.pameganslaw.state.pa.us) provides a searchable database for the public’s use.
A search of this nature is not an inspection, nor is the proximity of an offender a material defect that must be disclosed under the Seller Disclosure Law. Buyers who are concerned should make use of the resources available to them prior to submitting an offer.
Pennsylvania law requires those convicted of certain sexual offenses to register with the State Police under a program commonly known as Megan’s Law. The purpose of Megan’s Law is to provide com- munity notification of the presence of certain individuals in a particular area. The State Police website (www.pameganslaw.state.pa.us) provides a searchable database for the public’s use.
A search of this nature is not an inspection, nor is the proximity of an offender a material defect that must be disclosed under the Seller Disclosure Law. Buyers who are concerned should make use of the resources available to them prior to submitting an offer.
25 - Representations
During the course of a transaction many people say many things. Buyers will probably hear or read information about the property provided by the seller, the seller’s Realtor® and the buyer’s own Realtor®. Sellers will likely have gotten certain information about the buyers and their financial position from the buyers’ Realtor® or the buyers themselves.
With all this additional information floating around it is important to remember that the transaction is ruled ONLY by what is written in the Agreement and any addenda. If there is something about the transaction that isn’t in writing and included as part of the Agreement, neither side can rely on it. If you want something to be done, get it in writing even if the other party verbally says they’ll take care of it. If there is a proposed term written in the Agreement that you dislike or disagree with, delete it before signing the form; if a term is in the Agreement you will be bound by it, even if the other party stated that it wouldn’t be a big deal. Take the time to read and understand all relevant portions of the Agreement and any addenda. The time to deal with any issues is well before settlement, not at the settlement table or after the purchase is complete!
During the course of a transaction many people say many things. Buyers will probably hear or read information about the property provided by the seller, the seller’s Realtor® and the buyer’s own Realtor®. Sellers will likely have gotten certain information about the buyers and their financial position from the buyers’ Realtor® or the buyers themselves.
With all this additional information floating around it is important to remember that the transaction is ruled ONLY by what is written in the Agreement and any addenda. If there is something about the transaction that isn’t in writing and included as part of the Agreement, neither side can rely on it. If you want something to be done, get it in writing even if the other party verbally says they’ll take care of it. If there is a proposed term written in the Agreement that you dislike or disagree with, delete it before signing the form; if a term is in the Agreement you will be bound by it, even if the other party stated that it wouldn’t be a big deal. Take the time to read and understand all relevant portions of the Agreement and any addenda. The time to deal with any issues is well before settlement, not at the settlement table or after the purchase is complete!
26 - Default, Termination, and Return of Deposit
If a party fails to do something that is required by the Agreement that party could be considered to be in default. If this happens the other party may have certain legal rights and other rights granted by the terms of the Agreement.
In most transactions the buyer will have some amount of money paid as a deposit being held in escrow by a broker. The Default paragraph of the Agreement states that where the buyer is in default (usually for failing to do something necessary to keep the transaction moving forward) the seller will get to keep the buyer’s deposits. There is also a choice for the seller to decide whether those damag- es will be the complete remedy for the default or if the seller will reserve the right to also file a lawsuit for any additional remedy that might be provided by law.
Where the seller is in default the buyer’s rights are primarily defined by law, not by the Agreement. If the buyer wants to move forward with the purchase but the seller backs out for a reason not permitted in the Agreement, the buyer may be able to bring a lawsuit for damages or to force the seller to com- plete the sale.
There are many places in the Agreement where your action (or inaction) could lead to a default. Your Realtor® can help keep track of your various deadlines and responsibilities to make sure you don’t inadvertently end up in default.
Any deposits will be given to the real estate broker (unless another “escrow agent” is named in the Agreement) and will be applied to the purchase price. State laws strictly outline a real estate broker’s escrow duties and dictate that deposits be kept in an escrow account separate from the real estate broker’s regular business account.
The return of deposits is one of the most commonly misunderstood parts of the Agreement. State law requires that a real estate broker keep all deposits in the broker’s escrow account if there is any dispute between the parties about how the deposits should be paid. Even if one party is being unreasonable or is taking a position that clearly doesn’t match the terms of the Agreement, the broker is not permitted to return the deposits until the parties agree, a court order is issued, or the terms of a “pre-agreement” between the parties kick in. So that neither side can later claim that the deposits were released against their will, most brokers will ask the parties to sign some sort of a document authorizing the broker to release the deposits.
The language in Paragraph 26 is a “pre-agreement” between the parties that in the event of an unresolved dispute over deposit money, the buyer may ask for it to be returned after a specified time. Note that there are certain conditions that must be met before the broker may return the money. Also, a distribution of the deposit money to the buyer does not mean that the buyer is legally entitled to the money. The parties maintain their legal rights to litigate the dispute in court even if the deposit has been given back to the buyer.
If a party fails to do something that is required by the Agreement that party could be considered to be in default. If this happens the other party may have certain legal rights and other rights granted by the terms of the Agreement.
In most transactions the buyer will have some amount of money paid as a deposit being held in escrow by a broker. The Default paragraph of the Agreement states that where the buyer is in default (usually for failing to do something necessary to keep the transaction moving forward) the seller will get to keep the buyer’s deposits. There is also a choice for the seller to decide whether those damag- es will be the complete remedy for the default or if the seller will reserve the right to also file a lawsuit for any additional remedy that might be provided by law.
Where the seller is in default the buyer’s rights are primarily defined by law, not by the Agreement. If the buyer wants to move forward with the purchase but the seller backs out for a reason not permitted in the Agreement, the buyer may be able to bring a lawsuit for damages or to force the seller to com- plete the sale.
There are many places in the Agreement where your action (or inaction) could lead to a default. Your Realtor® can help keep track of your various deadlines and responsibilities to make sure you don’t inadvertently end up in default.
Any deposits will be given to the real estate broker (unless another “escrow agent” is named in the Agreement) and will be applied to the purchase price. State laws strictly outline a real estate broker’s escrow duties and dictate that deposits be kept in an escrow account separate from the real estate broker’s regular business account.
The return of deposits is one of the most commonly misunderstood parts of the Agreement. State law requires that a real estate broker keep all deposits in the broker’s escrow account if there is any dispute between the parties about how the deposits should be paid. Even if one party is being unreasonable or is taking a position that clearly doesn’t match the terms of the Agreement, the broker is not permitted to return the deposits until the parties agree, a court order is issued, or the terms of a “pre-agreement” between the parties kick in. So that neither side can later claim that the deposits were released against their will, most brokers will ask the parties to sign some sort of a document authorizing the broker to release the deposits.
The language in Paragraph 26 is a “pre-agreement” between the parties that in the event of an unresolved dispute over deposit money, the buyer may ask for it to be returned after a specified time. Note that there are certain conditions that must be met before the broker may return the money. Also, a distribution of the deposit money to the buyer does not mean that the buyer is legally entitled to the money. The parties maintain their legal rights to litigate the dispute in court even if the deposit has been given back to the buyer.
27 - Mediation
It used to be that if a dispute between a buyer and seller couldn’t be resolved amicably between the parties, the only other option was to go to court.
In many areas of Pennsylvania the local association of Realtors® offers a mediation process that brings the parties together with a trained mediator at a moderate cost to encourage an amicable solution. The language in this Paragraph indicates that the buyer and seller agree in advance to mediate using the mediation process offered by the local association of Realtors® if a dispute arises. If the dispute cannot be resolved, the parties are still free to go to court. You can ask your Realtor® for more information.
It used to be that if a dispute between a buyer and seller couldn’t be resolved amicably between the parties, the only other option was to go to court.
In many areas of Pennsylvania the local association of Realtors® offers a mediation process that brings the parties together with a trained mediator at a moderate cost to encourage an amicable solution. The language in this Paragraph indicates that the buyer and seller agree in advance to mediate using the mediation process offered by the local association of Realtors® if a dispute arises. If the dispute cannot be resolved, the parties are still free to go to court. You can ask your Realtor® for more information.
28 - Release
Depending on the terms negotiated by the parties, the buyer may have various opportunities to rene- gotiate or to terminate the Agreement. Where the buyer elects to move forward with the transaction or misses a deadline, the Agreement states that the buyer will accept the property and agree to this release.
In general terms, the release states that the buyers understand that if they accept the property with certain conditions they can’t then come back and file suit against the seller over those conditions. For example, if the buyer does an inspection that detects roofing problems but chooses to move forward without asking the seller to fix the roof, the buyer can’t come back later after the roof starts leaking and sue the seller for the cost of making repairs to the roof.
It is important to note that the release does NOT protect the seller in the case of fraud or any other default by the seller. So if the seller agrees to fix a problem with the roof but then lies about getting the repair done, the buyer is probably not bound by the release language of the Agreement. Because the release is so important, it is a good idea to ask your Realtor® or an attorney if you have any questions.
Depending on the terms negotiated by the parties, the buyer may have various opportunities to rene- gotiate or to terminate the Agreement. Where the buyer elects to move forward with the transaction or misses a deadline, the Agreement states that the buyer will accept the property and agree to this release.
In general terms, the release states that the buyers understand that if they accept the property with certain conditions they can’t then come back and file suit against the seller over those conditions. For example, if the buyer does an inspection that detects roofing problems but chooses to move forward without asking the seller to fix the roof, the buyer can’t come back later after the roof starts leaking and sue the seller for the cost of making repairs to the roof.
It is important to note that the release does NOT protect the seller in the case of fraud or any other default by the seller. So if the seller agrees to fix a problem with the roof but then lies about getting the repair done, the buyer is probably not bound by the release language of the Agreement. Because the release is so important, it is a good idea to ask your Realtor® or an attorney if you have any questions.
29 - Real Estate Recovery Fund
Pennsylvania law can protect consumers in the unlikely event that there is misconduct on the part of the real estate licensees involved in the transaction. If you successfully sue the licensee or licensees for their actions but are unable to collect your judgment from them, the Real Estate Recovery Fund can be a source to collect some, if not all, of your funds.
Pennsylvania law can protect consumers in the unlikely event that there is misconduct on the part of the real estate licensees involved in the transaction. If you successfully sue the licensee or licensees for their actions but are unable to collect your judgment from them, the Real Estate Recovery Fund can be a source to collect some, if not all, of your funds.
30 - Communications with Buyer and/or Seller
Communication between the parties and their Realtors® is the key to a smooth, successful trans- action. Copies of important documents, such as the time-sensitive Loan Estimate and Closing Disclosure, should be provided to your Realtor® as soon as you receive them.
In most cases communicating something to a Buyer Agent is viewed as the same as communicating something to the buyer. The same holds true for the Seller Agent and the seller. The only exception to this rule is the resale certificates for Condominiums and Planned Communities. These certificates must be delivered to the buyer before the buyer’s time to review these documents would begin, so this allows the seller’s agent to send those documents to the buyer directly rather than going through the buyer agent.
Communication between the parties and their Realtors® is the key to a smooth, successful trans- action. Copies of important documents, such as the time-sensitive Loan Estimate and Closing Disclosure, should be provided to your Realtor® as soon as you receive them.
In most cases communicating something to a Buyer Agent is viewed as the same as communicating something to the buyer. The same holds true for the Seller Agent and the seller. The only exception to this rule is the resale certificates for Condominiums and Planned Communities. These certificates must be delivered to the buyer before the buyer’s time to review these documents would begin, so this allows the seller’s agent to send those documents to the buyer directly rather than going through the buyer agent.
31 - Headings
You will see that each of the paragraphs (and some subparagraphs) in the Agreement are labeled with a heading. The headings are to help organize and locate information, and are not interpreted as providing any rights or responsibilities to the parties or their agents.
You will see that each of the paragraphs (and some subparagraphs) in the Agreement are labeled with a heading. The headings are to help organize and locate information, and are not interpreted as providing any rights or responsibilities to the parties or their agents.
32 - Special Clauses
During the negotiation process both the buyer and seller will probably make a number of changes to the pre-printed text of the Agreement. Sometimes these changes will just help clarify the pre-printed text (changing the number of days for an inspection, for example), and sometimes they will substantially alter the text (perhaps by crossing out and rewriting a paragraph to better reflect the parties’ intention). In certain other cases the buyer and seller will decide that there is a need to include something completely new in the Agreement.
The Special Clauses Paragraph provides the parties some space to add new or different terms that aren’t included in the pre-printed text. There is also a list of some commonly used PAR addenda that the parties might decide to use if they are relevant to the transaction, along with some blank lines to indicate that some other addenda are attached.
During the negotiation process both the buyer and seller will probably make a number of changes to the pre-printed text of the Agreement. Sometimes these changes will just help clarify the pre-printed text (changing the number of days for an inspection, for example), and sometimes they will substantially alter the text (perhaps by crossing out and rewriting a paragraph to better reflect the parties’ intention). In certain other cases the buyer and seller will decide that there is a need to include something completely new in the Agreement.
The Special Clauses Paragraph provides the parties some space to add new or different terms that aren’t included in the pre-printed text. There is also a list of some commonly used PAR addenda that the parties might decide to use if they are relevant to the transaction, along with some blank lines to indicate that some other addenda are attached.
Information extracted from the "Consumer Guide to Sales Agreement" from the Pennsylvania Association of Realtors (PAR). The entire guide can be obtained by request through your Pennsylvania Realtor®
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