Congratulations! You just purchased that new home study course. You followed the instructions. You found a good deal. You present your contract to the listing broker, and you get laughed at!

The reality is, real estate brokers don't like "seminar" forms. They are comfortable using the "standard" agreement, although the standard agreement is usually drafted to protect the real estate broker, not you. You must learn how to take any "standard" agreement and modify it to your liking.

The following are some essential clauses I use when buying a property:

“And/or assigns” or “and/or Nominees” - As the buyer, you want to have the right to assign your contract. By placing your name with the words, “and/or assigns,” you automatically give yourself that right. The words, “and/or nominees” is not as broad, but it has been interpreted as giving the buyer the right to place title in the name of a trust.

NOTE: If the contract contains an "anti-assignment" provision, you must cross that clause out.

Inspection Clause - Have the right to make the contract contingent upon your right to do a thorough inspection before a certain date. Make certain that you are not required to hire a professional inspector and that the inspection clause permits you to cancel the contract if there are things wrong with the property and the seller is not willing to fix these or reduce the price.

Choice of Escrow Company - As the buyer, insist on the right to choose the title or escrow company so that you remain in control. A conservative or uncooperative escrow or title company can make life very difficult if you are trying to do a creative deal.

Right to Extend - Most contracts call for a date certain for closing. If the buyer is not ready to close, the seller can hold him in default. Here are some tips for buying time: Make the closing date “on or about” June 1st. What does “on or about” mean? I’m not sure, but it certainly means LATER than June 1st! Have the right to extend the closing date if it is not your fault:

“Said date may be extended an additional fifteen (15) days if lender requires additional documentation, paperwork or actions from the buyer and said delay is not due to the fault of the buyer.”

Have the right to extend for thirty days by paying the seller the equivalent of one month’s mortgage payment.

So far we've discussed the importance of learning to use the "standard" real estate broker contract rather than the "seminar" contract when dealing with real estate agents. The following are some essential clauses and modifications I use when selling a property:

Limited Inspection Clause - Most standard broker contracts give the buyer the right to make the contract contingent upon the right to do a thorough inspection before a certain date. Make certain that the inspection period is short and that the inspection must be done by a licensed (if they are in your state) professional inspector. Limit objectionable items to roof, plumbing, electrical, heating and structural defects. An open-ended inspection clause will permit the buyer to "weasel" out of a contract because the garage door squeaks.

Choice of Escrow Company - As the seller, I insist on the right to choose the title or escrow company so that I remain in control. A conservative or uncooperative escrow or title company can make life very difficult if you are trying to do a creative deal.

Qualification of Buyer - The most important thing to keep in mind when selling is that time is money! The single biggest mistake sellers make is allowing an unqualified buyer to tie up their property under contract for two months. Do not believe any claims of the buyer, his agent or mortgage broker about their ability to qualify for a loan. You should know exactly what the qualifications are for an FHA or FNMA loan in your area and qualify the buyer yourself.

I use the following clause:

"Within 48 hours, buyer shall provide seller with buyer’s complete financial and credit information for seller’s approval. Within 72 hours after receipt of such information, Seller may terminate this contract and refund buyer’s earnest money if, in seller’s sole opinion, buyer does not have the creditworthiness to qualify for a loan from a third party. Seller’s decision and opinion shall be final in this regard, and buyer shall have no further recourse after return of this earnest money deposit."

NOTE: Be certain you do not engage in illegal discrimination in rejecting a buyer's credit worthiness.

Permission to Contact the Lender - I hate being in the dark! I always want the ability to control the entire loan process and be able to get information from the lender along the way. The buyer's lender won't talk to you directly, without express written permission of the buyer.

To remedy this problem, insert the following clause:

"Buyer hereby gives express permission to all parties, including lenders, employers, financial institutions, credit agencies, mortgage brokers and real estate agents to release any appropriate financial information to the seller."

Now you can take control, get on the phone and scream "What's holding up this loan!"

About the Author
Bill Bronchick, CEO of Legalwiz Publications, is a Nationally-known attorney, author, entrepreneur and speaker. Mr. Bronchick has been practicing law and real estate since 1990, having been involved in over 600 transactions. He has appeared as a guest on numerous radio and television talk shows including CNBC Power Lunch. He has been featured in Who's Who in American Business, Money Magazine, the Los Angeles Times and the Denver Business Journal. William Bronchick has served as President of the Colorado Association of Real Estate Investors since 1996.

These forms can can in very handy when putting together deals...

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