We often see exhibits to contracts that are not properly incorporated into
contracts. The exhibits may not be referenced in the body of the contract or may
not have correct identifying numbers or letters (labels). Whenever we see
exhibits that we believe are incorrectly incorporated or attached, we ask that you
amend the contract to include them. This is critical if the parties intend for the
unincorporated exhibit to have any legal significance. No matter how important a
document is, if it is not legally attached to the body of the contract, it has no legal
significance. Think about a Seller Property Disclosure, a loan contingency or a
Community Association Disclosure that is not incorporated or attached. Yikes.
The parties cannot rely on the content to resolve a dispute. The list of problems
that can arise is infinite.
GAR makes it easy. In the GAR Purchase and Sale Agreement at section 8,
page 8, it states: All exhibits and/or addenda attached hereto, listed below, or
referenced herein are made a part of this Agreement. The list includes
documents often incorporated as Exhibits, as well as an “Other” category, with a
space for the identifying letter or number assigned to the exhibit. Exhibits can
also be referenced in Special Stipulations and be incorporated into the contract.
This is basic contract law. The same is true in non-GAR purchase agreements
and non-real estate contracts.
This simple language can be used in non-GAR contracts to incorporate
documents:Special Stipulation for Attaching Exhibits: The following [NAME OF
DOCUMENT] between ______ and ______, dated ____ and attached to this
Agreement as Exhibit ___ is hereby incorporated into this Agreement in its
Reference: Weissman, Seth. The Red Book on Real Estate Contracts in Georgia
(pp. 145-146). BookBaby. Kindle Edition.
Broker Corner 6/23/23
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