The Real Estate Purchase Contract

A Deep Dive

Couple talking to broker in new house
Getty Images/Roberto Westbrook

The Process of Buying Real Estate

You've been out with your broker for months and you've finally found the home, property and neighborhood that feel exactly right for you. The seller has published the asking price and now it's time for you to make a bid, or convey to the seller that you are seriously interested.

The bid may be lower, the same, or even higher than the asking price, based on market conditions.

It's the beginning of negotiations, a process that could go on for several rounds. Finally, you and the seller agree on a price. Now it's time to "go to contract".

The Real Estate Purchase Contract

Also known as a contract to purchase real estate or a residential purchase agreement, a real estate purchase contract is a binding, bilateral agreement between two or more parties with legal capacity for the purchase, exchange or other conveyance of real property. The contract is based on a legal "consideration." Consideration is what is exchanged for the real estate and, most commonly, it is money. Consideration could also be other property in exchange, or a promise to perform (i.e. a promise to pay).

The United States Statue of Frauds requires real estate contracts to be in writing to be enforceable, and it must be signed by both parties (buyer and seller). There are templates and forms available, but you should always consider consulting an experienced real estate attorney.

The contract will contain:

  • Identification of the parties, the real estate property and the agreed upon purchase price
  • The essential details, rights, and obligations of the contract
  • The contingencies, or conditions that must be met
  • The condition of property, what is included and what is not included
  • The amount of the deposit
  • The closing costs and who pays what
  • The prospective date of closing
  • The signature of each party.

Contingencies

The list of contingencies may include:

Earnest Money Deposit

A deposit is usually made when the buyer signs the contract, which is held in escrow by a third party, e.g., the seller's real estate lawyer until the closing. It is usually a fraction of the selling price and is specified in the contract. It is a credit towards the final negotiated purchase price.

What if the Buyer Wants Out

This is a serious consideration and may result in the loss of your deposit, or worse, being sued for specific performance, or completion of the contract. If you feel you have to get out, the best time is while the contingencies are being met. Contingencies are escape hatches, and can legitimately be used if the buyer gets cold feet.

The most common "out" is because of financing contingencies. If, in good faith, the buyer tries to get a mortgage and is turned down, the contract is canceled and no one is at fault.

Many things can go wrong in underwriting. Just because a buyer is preapproved by a lender does not mean the buyer will emerge successfully from underwriting.

Another common out is the inspection contingency. If the inspection turns up defects, and they all do, and the buyer deems the deficiencies to be too much to deal with, or the buyer and seller cannot reach agreement on repair of the defects, the parties can cancel the contract, and no one is at fault. In some parts of the country, home inspections are done in advance of signing a purchase contract, so an inspection might not be a contingency of the purchase contract.

Ask your real estate agent to explain any paragraphs you do not understand. Bear in mind that she cannot provide legal advice, but she should be able to help you to decipher any confusing points.

At the time of writing, Elizabeth Weintraub, CalBRE #00697006, is a Broker-Associate at Lyon Real Estate in Sacramento, California.