​September is Agent Safety Month.
For many agents – new and tenured alike – safety protocols aren’t top of mind, especially in a busy market with new opportunities and prospective clients popping up daily.  Here are some simple safety precautions real estate professionals can take during home tours and open houses.
Verify Who You’re Meeting
Take initial meetings with clients outside of a home setting. Meet clients first in places like a coffee shop or in the office. Verifying the identity – and intentions – of each and every prospective client is a relatively simple precaution real estate professionals can take.

​Be aware, everywhere

• Attacks happen both in metropolitan and in rural areas.
• Men and women are equally susceptible to being attacked when working alone.
• Use the buddy system. Bring along a colleague, mortgage professional, friend or family member to ensure they’re never completely alone in the home with strangers.
• Share your schedule with others so someone always knows where they are – or should be.

Protect with tech

1. Find My Friends and Find My iPhone features are the most popular options for ensuring others have safe access to an agent’s location.
2. Use the tracking capabilities on your Iphone or Android.
3. Apple AirTags is a small tracking devices that cost under $30 that can be kept on your keyring.
4. Forewarn is an app that does an extensive background check on any individual.
5. Life 360 is a location tracking services that can be used with a Buddy or a group.

Source: https://news.remax.com/simple-safety-measures-all-real-estate-agents-can-take

The Lead-Based Paint Exhibit was revised in April to create an exhibit exclusively for sales transactions (GAR F316) and another one for lease transactions (GAR F918). As such, the new exhibits track more closely the federal forms prepared by the Environmental Protection Agency. Both forms now include boldface disclosures explaining that prior to the contract becoming a binding agreement, the lead-based paint exhibit needs to be completed by the buyer and seller and the buyer needs to receive a lead-based paint brochure.
 
What is covered by the Federal Rule?
The Residential Lead-Based Paint Hazard Reduction Act of 1992, also known as Title X, directs HUD and EPA to require the disclosure of known information on lead-based paint and lead-based paint hazards before the sale or lease of most housing built before 1978.  Lead Based Paint Hazards can include fixtures that were built prior to 1978, even though the property itself was built after 1978.  Think about antique doors, antique light fixtures or any other elements in the property that may have been created prior to 1978. If in doubt, disclose.
 
What is Required and When?
 
Before a Purchase Agreement or a Lease becomes binding, federal law requires the following:

• Give an EPA-approved information pamphlet on identifying and controlling lead-based paint hazards ("Protect Your Family From Lead In Your Home" GAR CB 04) pamphlet to the Buyer.
• Disclose any known information concerning lead-based paint or lead-based paint hazards. The seller or landlord must also disclose information such as the location of the lead-based paint and/or lead-based paint hazards, and the condition of the painted surfaces.
• Provide any records and reports on lead-based paint and/or lead-based paint hazards which are available to the seller or landlord.
• Include an attachment to the contract or lease (or language inserted in the lease itself) which includes a Lead Warning Statement and confirms that the seller or landlord has complied with all notification requirements. Sellers or landlords, and agents, as well as homebuyers or tenants, must sign and date the attachment.
• Sellers must provide homebuyers a 10-day period to conduct a paint inspection or risk assessment for lead-based paint or lead-based paint hazards. Parties may mutually agree, in writing, to lengthen or shorten the time period for inspection. Homebuyers may waive this inspection opportunity.

 
Compliance is Easy
If you represent the Seller, the easiest way to comply with the requirements is for the Listing Broker to have the Seller complete the Exhibit at listing (along with the Seller Property Disclosure and the Community Association Disclosure).  The Listing Agent can distribute it 2 ways: 1) have it in the property for agents to pick up and 2) upload it to FMLS /and GAMLS. The Exhibit can then be downloaded by the Buyer’s agent to sign before an offer is made.  Remember, the requirement is that the LBP Exhibit be executed by both parties prior to a binding agreement. 
 
If you represent the Buyer, make it a habit to include "Protect Your Family From Lead In Your Home" GAR CB 04, along with Protect Yourself When Buying a House, with every Brokerage Agreement.  Be sure to check it as provided to the Buyer in the Brochures section of the Buyer Brokerage Agreement, so you can prove that it was delivered.  (And avoid a big fine.)
 
What boxes should be initialed?
Seller:

• The Seller must initial at both (a) and (b). 

 
Buyer:

• Whether to initial (c) is in conflict.  The General Counsel for GAR, Seth Weissman, advises to initial it, because the language is so open, “Buyer has received copies of all information, if any, listed above.”

 

• The Buyer must always initial (d), that the Lead Based Paint brochure has been received.

 

• One of the alternatives at (e) should be initialed.  Unless the Buyer has had the opportunity to conduct a risk assessment before making an offer, the waiver box (e)(ii) should be checked. 

 
What if a contract is not in compliance?
The law carries huge fines for violations. Each violation carries a fine from $11,000 to $16,0000. Assume that investigators from the EPA are here in Georgia, spot checking for violations. Because they definitely are here.
 
 
It’s the Law
Don’t procrastinate and don’t let the Seller push back. The LBP disclosure is a mandatory federal law. It is not optional.

A Special Stipulation is a specific instruction written in a contract that is unique to the buyer and this seller. It is not a place to reiterate what is already in the contract. In the GAR Purchase and Sale Agreement (PSA), if there is a conflict between a Special Stipulation and any exhibit, addendum, or preceding paragraph, including any changes made by the parties, the Special Stipulation controls.
 
The Critical 5 elements:  Who, What, When, How and Remedy.
 
The rules for writing Special Stipulations are simple.  Include the critical 5 elements and you will have written a solid Special Stipulation.  Below are 2 appraisal Special Stipulations.  One is missing the critical “Remedy” element.  The other includes a remedy and is complete.
 
Missing Remedy Element Example
In the event the Property does not appraise for at least the purchase price, Buyer shall pay the difference between the appraised price of the Property and the purchase price of the Property in cash at closing, provided that the amount does not exceed the sum of $­­­­­­­­­ 10,000.
1.Who is going to do it?  The Buyer.
2.What are they doing?  Paying the difference, limited to $10,000.
3.When will it be done?  At closing.
4.How is it going to be done? In cash.
5. Remedy if the Special Stipulation doesn’t work?
There is no remedy!  The Buyer and the Seller will either have to negotiate to save the deal or the contract will fail for being too vague to enforce.  If one of the parties wants it to fail, it will fail.
Complete Special Stipulation                                                                                                                      In the event the Property does not appraise for at least the purchase price, Buyer shall pay the difference between the appraised price of the Property and the purchase price of the Property in cash at closing, provided that the amount does not exceed the sum of $­­­­­­­­­ 10,000.  Notwithstanding the above, if the difference between the sales price and the appraised value of the Property is more than $10,000, Buyer shall have the right, but not the obligation, to terminate this Agreement provided that Buyer gives notice to Seller within 3 days of receiving the appraisal of the Property, in which case Buyer shall be entitled to the return of Buyer’s earnest money. If Buyer does not terminate the Agreement within this time frame, Buyer’s right to terminate on this basis shall be waived and Buyer shall pay cash to Seller at the closing for the entire difference between the appraised value and the sales price of the Property.
1.Who is going to do it?  The Buyer.
2.What are they doing?  Paying the difference, limited to $10,000.
3. When will it be done?  At closing.
4.How is it going to be done? In cash.
5. Remedy if the Special Stipulation doesn’t work? If the difference is greater than $10,000, the Buyer can terminate or the buyer’s right to terminate is waived.The complete Special Stipulation appraisal is not vague. It allows the contract to proceed according to its terms. 
 
Hope this helps!

In the GAR Contract, if the buyer and seller want the closing attorney to hold the earnest money, they sign a form titled “Closing Attorney Acting as Holder,” which becomes an exhibit to the purchase and sale agreement. It is GAR Form 510.  There is a required companion document in which the Attorney agrees to hold the earnest money, the Escrow Agreement (GAR F511).  The 2 documents operate together.  The 510 is attached to the purchase agreement and is signed by the Buyer and Seller.  The 511 or Escrow Agreement is not attached to the purchase agreement.  It is a separate agreement signed by the closing attorney agreeing to hold the funds.
 
Within two business days of the binding agreement date, the buyer is required to deliver to the closing attorney a copy of the fully signed and executed purchase and sale agreement with all exhibits, including the F510, and including the unexecuted F511 escrow agreement. The closing attorney must then agree to serve as the holder under all of the same conditions laid out in the purchase agreement. The closing attorney must then deliver notice of execution of the F511 to the buyer and seller within three business days of receiving notice that the closing attorney is desired as the holder. The notice method is generally the fully executed F511.
 
What If the Closing Attorney Does Not Agree to Hold the Earnest Money?
If the closing attorney does not agree and deliver the executed F511 back to the buyer and seller, then the F510 provides that the alternate holder named in the F510 will automatically become the holder instead. The alternate holder must be a broker in the transaction.  Therefore, an alternate holder must be inserted into the F510 at section 7.  If no alternate holder is inserted, the buyer’s agent is the default.
 
When Do the Duties of the Escrow Holder Begin?
The duties of the escrow holder do not begin until the closing attorney actually receives the purchase and sale agreement in which he is named as holder. The logic is that a holder should not be punished for failure to follow the terms of an agreement that he has potentially not yet even seen.  
 
Timeline

1. Binding Date (BD): Purchase and Sale Agreement (PSA) becomes binding with the F510 as an exhibit.
2. Delivery of the PSA: The PSA is delivered to the Closing Attorney within 2 days of the BD.
3. Agreement. execution and delivery of the F511: Within 3 days of the delivery of the PSA the closing attorney must a) sign the Escrow Agreement without modification; and b) deliver it to Buyer and Seller.
4. Deposit of Earnest Money. Earnest Money must be deposited into an escrow account by the attorney within 3 days of receipt of the binding PSA. 

 
Potential for an Attorney’s Conflict of Interest in a Cash Transaction
The GAR Purchase and Sale Agreement provides that the closing attorney will represent the lender in the transaction, but if there is no lender, then the closing attorney will represent the buyer. A particular area of concern arises when the closing attorney who is representing the buyer is also the holder of the earnest money in an all-cash transaction because, unlike real estate brokers and agents, attorneys owe fiduciary duties to their clients, and their role as the holder has the potential to result in a conflict of interest for the attorney. If there is a dispute and the attorney owes a fiduciary duty to the buyer, the attorney must disburse the funds back to the buyer, if there is any reasonable basis for doing so. The seller may well object to this, however, since as the holder of the earnest money, the attorney is required to be neutral and make an objective determination.  The holder may well feel that under these facts the buyer is in breach and that the funds should be paid to the seller. But how can the attorney make such a call when doing so is against the best interests of his buyer client? The GAR contract resolves this conflict issue by requiring the Holder to interplead the funds.  Therefore, in a cash transaction, consider having one of the brokers in the transaction hold the earnest money rather than the closing attorney.

​The GAR Purchase and Sale Agreement aggregates the disclosures and agreements relating to the community association into one exhibit, the Community Association Disclosure Exhibit (“CAD”).
 
Who Pays for What in the CAD
The seller generally pays for the following things:
1) the closing letter
2) all amounts assessed against the property that come due before the closing, including both regular and special assessments
3) any move out fees and other fees designated by the community association as a seller fee
4) any transfer, initiation and administrative fees that the seller has not fully disclosed to the buyer (or which increase after the seller has initially disclosed this amount to the buyer)
5) any special assessments that have been adopted or are under consideration
that have not been fully disclosed by the seller to the buyer.
 
Seller Obligated to Pay All Assessments Owing Through Closing
The seller is obligated to pay all assessments against a property owing through closing in order to convey good title to the buyer. This includes all recurring assessments owing through the closing. These are normally annual assessments that are paid in intervals established by the community association such as monthly, quarterly, or semi-annually. For example, if an assessment is $1,200 per year and is due in monthly installments of $100 per month and a property closes halfway through the year, the first six months of assessments would be paid by the seller, and the second six months of assessments by the buyer. The point is that assessments are prorated through the closing. Assessments can include late fees, fines, court costs, interest and attorney’s fees charged against a property. It is critical that the assessment amount is completed correctly.  The form calls for the annual assessment and the number of installments.  If the seller completes the document with the monthly assessment amount, for example, the Seller will have the pay 11 months for the buyer because the annual amount was not properly disclosed.
 
Special Assessments Paid in Installments
Some special assessments may be paid in installments while others must be paid at once. The due date for the special assessment will determine what must be paid by the date of closing. If a special assessment is due in installments, some of which come due before the closing and some of which come due after the closing, the installments coming due before the closing would all be the obligation of the seller to pay. Most special assessments are technically due in full when they are passed, but no late fees or penalties are imposed if the owner timely makes all permitted installment payments. When installment payments are permitted by the community association, those installments coming due prior to the closing are the responsibility of the seller and those installments coming due after the date of closing are the responsibility of the buyer.
 
Seller Pays for Seller Clearance Letter
Under the CAD, the seller is obligated to pay the cost of any association account statement, clearance letter or closing letter. This letter normally details all amounts owing to the community association through a specified date on the letter and is used to help a seller convey clear title to a property to a buyer. In some instances, the closing letter will only be issued by the community association as part of a package, where other amounts must also be paid to get the closing letter. So, for example, a community association might charge $500 to issue a clearance letter and to provide other documents to the seller at the same time. If the clearance letter will only be issued in a package of documents or other information, information, the seller is required to pay whatever amount is necessary to get the package of documents or information, including the clearance letter.
 
Buyer Pays for Transfer, Initiation and Administrative Fees                             That Are Fully and Accurately Disclosed
Under the CAD, the buyer pays all transfer, initiation, and administrative fees that have been accurately and fully disclosed to the buyer. “Transfer, initiation and administrative fees” is a defined term in the GAR Community Association Disclosure Exhibit and includes: “. . . any initiation fee, capital contribution, new member fee, transfer fee, new account set-up fee, fees similar to the above but which are referenced by a different name, one-time fees associated with the closing of the transaction and fees to transfer keys, gate openers, fobs and other similar equipment. Advance assessments due at Closing for a period of time after Closing, shall not be Transfer, Initiation and Administrative Fees and shall be paid by Buyer.” It is critical that the Seller accurately disclose these fees in the CAD.  If the Seller does not and fees in excess of the agreed amount are due, the Seller has to pay them.  See 3.C on page 3 of the CAD.
 
If the buyer wants the seller to make a contribution to transfer, initiation and administrative fees, a Special Stipulation can be used.
 
 
The Seller Pays for Transfer, Initiation and Administrative Fees
Above an Agreed Amount
 
Transfer, initiation and administrative fees need to be accurately disclosed by the seller to the buyer. One problem that arises in this area is that sometimes a fee will increase from the time it is initially disclosed to the buyer. In other cases, the seller may forget to disclose a fee. The (CAD) provides that the buyer pays up to a maximum fill-in-the-blank amount for transfer, initiation, and administrative fees. The seller then pays all transfer, initiation, and administrative fees above this amount, regardless of why. So, for example, let’s say that the buyer and seller agree in the CAD that the buyer will pay a maximum of $1,000 for transfer, initiation and administrative fees. The community association then increases the fees to $1,400. In this case, since the maximum amount the buyer is obligated to pay is $1,000, the seller is obligated to pay the additional
 
Special Assessments
If Seller Accurately Discloses Special Assessments Approved/Under Consideration
If the seller accurately discloses in the GAR Community Association Disclosure Exhibit that a special assessment has passed or is under consideration, then the special assessment is paid for by the party who owns the property at the time the special assessment is due. In other words, if the special assessment is due prior to closing, the special assessment is paid by the seller. If the special assessment is due after closing, the special assessment is paid by the buyer. If a portion of the special assessment is due before and after closing, the buyer and seller would each pay their respective portions of the special assessment.
 
Buyers have a general duty under Georgia law to exercise reasonable care to protect themselves against being defrauded. Buyers should try to independently verify whether a special assessment has been passed or is under consideration, since doing so will strengthen the buyer’s legal position by showing that the buyer exercised reasonable care to discover whether a special assessment was under consideration or approved. Another way buyers can demonstrate that they used reasonable care to determine if a special assessment is under consideration or has been approved is to include a special stipulation in their contracts. The special stipulation should require the seller to provide, provide, within the first five days or so of the commencement of the due diligence period, minutes of the meetings of the six most recent meetings of the board of directors of the community association. 5Surprise
 
Special Assessments Arising After the Binding Agreement Date
Who Should Pay?
In some cases, notice of a large special assessment is often sent and approved after the Binding Agreement Date but prior to closing. What is the fair way to decide who should pay? The CAD includes a procedure, including a right to terminate under specific condition, where the parties pre-agree. See the CAD for details at F.iii (c).  An amount above which the buyer has the right to terminate must be filled in.
 
Source: Weissman, Seth. The Red Book on Real Estate Contracts in Georgia (pp. 768-777). 6th Edition 2021.

​Savvy sellers want as few conditions in a purchase and sale agreement as possible.  An offer without a finance contingency is very tempting.
 
Savvy buyers want their offer to stand out from the competition. Although Buyers may not have the cash, they may be confident in their ability to get a loan.  So, they omit a loan contingency to make their offer look better than any others.
 
What Advice Do You Give to The Seller?
 
An offer without a finance contingency is not the same as an all-cash offer.
For the seller, it’s not as good as an offer that includes an all-cash sale exhibit, because the seller cannot ask for proof of funds.  The all-cash sale exhibit requires proof of funds. If the buyer cannot provide proof of funds, the seller can terminate, and the buyer will be in default.  Without that ability to see proof of funds, the seller may be forced to wait until closing day to learn if the buyer can deliver.  So, the best advice is to have the seller to respond with a requirement of an “All Cash Sale” exhibit.  Then the seller can get the information he needs.
 
Can the Buyer still get a loan if there is not a finance contingency?
Absolutely. The buyer can get a mortgage, but the purchase would not be contingent on getting it. If buyer fails to get a loan, the buyer must close in cash or be in default.
 
What if an All-Cash Sale exhibit is included and the buyer reserves the right to get a mortgage, does the sale become contingent on getting the loan?
No. The right to get a mortgage in an all-cash transaction does not create a loan contingency.  Buyers acknowledge in all-cash exhibit that they have sufficient liquid assets to purchase the property for all cash. If a loan attempt fails, the buyer is still obligated to close for all cash or be in default.
 
If the buyer has previously been approved for a loan and does not include a financing contingency, should the buyer include an all-cash exhibit?
No. All cash means cash or assets that can be liquidated easily. That does not include loan proceeds.  If an all-cash exhibit is included, the verification of funds clause kicks in and the buyer would need to prove that he has liquid funds to close.  If the buyer can’t, the buyer would be in default and the seller is allowed to terminate.  However, the seller can ask for an all-cash exhibit, as noted above. If the seller insists and the buyer needs loan proceeds to close, consider Special Stipulations that allow the buyer to provide a loan approval by a certain date.

Is a Purchase and Sale Agreement Still Valid After the Closing Date Has Passed?
 
In most cases, the answer is YES!  The contract is still valid, but one of the parties is likely in breach of the agreement.
 
In Georgia, the Purchase and Sale Agreement (PSA) does not automatically expire if the sale does not close on the stated closing date, even if there is a “Time is of the Essence” clause in the contract.  To effectively terminate, the non-breaching party must serve a notice of termination on the breaching party. The non-breaching party then has the remedies provided in the law and the PSA.  (Note that the GAR PSA Remedies clause limits the remedies.)
 
When a PSA is not automatically terminated and is still valid, a fully executed amendment to extend the closing date would also be valid.  Once the date is extended, the defaulting party is no longer in default.
 
Automatic Termination is Possible
If the parties wish to provide for automatic termination when a closing date passes, additional contract language would need to be added as a special stipulation.
 
“ In the event that a closing does not occur on or before the closing date as set forth in this Agreement, including any permitted extensions, then this Agreement shall automatically terminate and the non-defaulting party shall have the right to pursue all available claims at law or in equity against the defaulting party.”
 
GAR 290 Agreement to Reinstate Contract.
 
GAR recently added a new form to its arsenal that has created some confusion. GAR 290, Agreement to Reinstate Contract is to be used when the PSA was terminated by one or both of the parties and the parties now want to reinstate the Agreement.  Accidental terminations happen.  The above situation is a good example. Another example is including an automatic termination clause in an Amendment to Address Concerns. The parties may still be negotiating past the time to respond and, whoops, the automatic termination happens.  Or the parties can intend a termination, later change their position and want to reinstate the PSA.  In these cases, go to the Agreement to Reinstate Contract.

The Fair Housing testers are out looking for violators in Georgia.  Testers are often sent out in pairs – a white tester and, later, a minority tester. Both will be looking for housing with the same criteria and must be treated equally. Don’t be one of the unfortunates that gets tested and fails! If you fail the fair housing test, you could lose your license to sell real estate!
 
Fair Housing laws make it illegal to steer buyers to or away from given areas based on race, religion, nationality, sex, color, handicap and familial status.
 

• Be equally available to show property to all buyers.
• If you require a pre-qualification letter from any buyers, then you must require it of all buyers.
• If you ask for identification from any buyers, ask it from all buyers.
• Ask all buyers who do not know where they want to live the same questions and show them all the same properties that meet their criteria.
• Use the taxi driver question: “where to?” when asking buyers where they would like to look for homes.
• Be up-front with buyers.  Let buyers know what questions are out of bounds.  If pressed, you can answer, “Federal Fair Housing law prohibits me from answering your question.”
• Do not use data sources to discriminate.
• Do not disparage neighborhoods to some, but not to others. 

 
Ask safe questions!  A few examples:
Do you prefer a single story or a two-story home?  A new home or an existing home?
A detached home or a townhome?
 
What home features are you looking for?
How many bedrooms? A yard?  A pool? An open floorplan? A basement?
 
What neighborhood features are you looking for?
Nearby your work, medical, recreation, extended family? School districts? Walkability?
 
There are many, many questions to be asked.  Make sure they are about the property and the buyer’s stated needs and you won’t get into trouble.  Stay safe out there!

More and more, we are seeing Temporary Occupancy Agreements (GAR F219) so sellers can remain in their properties post-closing. Here are a few tips for navigating the form.
 
Maximum Temporary Occupancy is 60 Days
The GAR Temporary Occupancy Agreement is designed to cover the Seller remaining in the property for up to 60 days.  If the Seller needs longer than 60 days, a lease should be used.  The reason is that, if the buyer has purchased as an owner occupant, lenders consider 60 days the cut off for determining whether the owner is an owner occupant or an investor.  If the lender determines that the new owner is actually an investor, the new owner would be in default of the loan.  The interest rate could increase or, worse, the owner could be accused of mortgage fraud.
 
Tip: Don’t allow a post-closing occupancy to be more than 60 days. Use a lease form if the seller requires more than a 60 day occupancy.  More than 60 days may not work if the new owner will be an occupant.
 
Watch Out for Insurance Issues
Once ownership of a property changes, insurance coverage changes too.  The seller’s owner occupant policy no longer covers the seller.  The buyer is now the owner.  If there is a flood or a fire, the new owner’s policy covers the real estate, but not the seller’s personal property.
 
Tip:  Make sure the seller contacts his insurance carrier for advice regarding personal property coverage during the temporary occupancy.
 
The New Owner is Responsible for Maintenance and Repairs
Once the closing takes place, the new owner is responsible for the maintenance and repair of the property.  The previous owner is not.  The old owner is just a tenant.  Unless the old owner has damaged the property beyond normal wear and tear, they are only responsible for their own personal property.
 
Tip: Advise your buyers, before they agree to a seller remaining in the property post-closing, that they are responsible for the maintenance and repair of the property post-closing.
 
Make a Hold Over Period Hurt
Once the agreed upon temporary occupancy has terminated, a seller that remains in the property is holding over.  If the seller doesn’t leave voluntarily, the new owner may have to evict.  Evictions cost time and lots of money. Therefore, make the daily cost of holding over a significant one.  If the daily cost is minimal, the seller has no incentive to leave. 
 
Tip: Include a large per day hold-over fee.  Make it hurt.  $500 or $1000/day would incentivize a seller to leave on time a lot more than a small fee. 
​

Lately, we have been seeing sellers that want to terminate a binding contract that should be headed for a closing. If it happens to you, this is good information to point out to your sellers.  Remember, don’t give legal advice.  Just point out the contract provisions below.

There are, indeed, substantial risks to the seller. The GAR Purchase and Sale Agreement, once fully executed and binding, is a firm contract with clear terms, duties and performance responsibilities of both parties.  If there are no remaining contingencies or conditions that would prevent closing, the seller is obligated to sell and the buyer is obligated to buy.  A seller who then chooses to terminate, is in default of the Agreement.  

The consequences of a default by a seller are detailed in the GAR Purchase and Sale Agreement on page 5, Paragraph 2. Default. There are include Buyer Remedies, Broker Remedies and Attorney’s fees.  The relevant language is copied here.

Paragraph 2. Default

b. Remedies of Buyer: In the event this Agreement fails to close due to the default of Seller, Buyer may either seek the specific performance of this Agreement or terminate this Agreement upon notice to Seller and Holder, in which case all earnest money deposits and other payments Buyer has paid towards the purchase of the Property shall be returned to Buyer following the procedures set forth elsewhere herein. 

c. Rights of Broker: In the event this Agreement is terminated or fails to close due to the default of a party hereto, the defaulting party shall pay as liquidated damages to every broker involved in this Agreement the commission the broker would have received had the transaction closed. For purposes of determining the amount of liquidated damages to be paid by the defaulting party, all written agreements establishing the amount of commission to be paid to any broker involved in this transaction are incorporated herein by reference. The liquidated damages referenced above are a reasonable pre-estimate of the Broker(s) actual damages and are not a penalty. 

d. Attorney’s Fees: In any litigation or arbitration arising out of this Agreement, including but not limited to breach of contract claims between Buyer and Seller and commission claims brought by a broker, the non-prevailing party shall be liable to the prevailing party for its reasonable attorney’s fees and expenses. 

The potential costs of a seller default are significant.  

In this very strong seller’s market, a buyer has multiple reasons to elect to sue for specific performance: the uniqueness of the property, low inventory of similar homes in the market, difficulty of winning another house and rising home prices.  Should an action for specific performance be successful, not only would the seller be forced to sell, the seller would also be required to pay the buyers’ attorney fees and expenses of litigation.  Fees for both the seller’s and the buyer’s attorney fees can be extremely enormous. Litigation counsel can charge $500 or more per hour. If the parties decide to settle rather than litigate, the settlement can be extremely high as well. We recently had a seller termination in which the buyers and sellers settled in lieu of a suit for specific performance for $200,000.  

In this market, it is unlikely that the buyer will walk away with only the return of earnest money.

As stated in Paragraph c. (above), full listing and seller broker fees are also owed by the seller that defaults.

Seek the Advice of Outside Counsel
Always encourage a seller considering a default by termination to seek their own legal advice before moving forward.  Our experience is that outside counsel will agree and help you get the transaction back on track!

​