Q: Who is required or authorized to sign documents for the estate of a deceased person?
A: The personal representative assigned during probate has the authority to sign documents and make decisions concerning the disposition of the estate. Remember, a person’s position as an heir to the deceased does not necessarily make him or her an owner until probate is closed. In addition, it is important to know that a power of attorney (even a durable one) cannot survive the death of the principal.
Q: I have a listing with great potential, but the seller wants to do work on the property before we start marketing it. I have no idea how long the improvements will take. For this reason, I plan to make the listing agreement open-ended, meaning that it will not have a termination date. Is this legal?
A: No. The licensing law, Section 475.25(1)(r), Florida Statutes, states that a licensee may be disciplined by the Florida Real Estate Commission (FREC) for failing to include a definite expiration date in a listing agreement. Instead, you and the seller should choose a mutually agreeable termination date, which can always be modified or extended with mutual assent.
Q: Under the “AS IS” Residential Contract For Sale And Purchase, (FloridaRealtors/FloridaBar-ASIS-3), are there any steps that the parties should take if the property is subject to a lease after closing?
A: Yes. Please note that in this latest version of the contract, the buyer and seller should carefully review both the new Paragraph 6(b) and the revised Paragraph 18(D) to get a full picture of their rights and obligations in this matter, and they should consult a lawyer if they need help understanding or complying with these terms. Here is a brief summary of these sections, arranged chronologically: 1. Seller shall deliver copies of the lease(s) and a written disclosure of the facts and terms thereof to the buyer within five days after the Effective Date. 2. Buyer may terminate the contract by delivering written notice to seller within five days after receipt of the lease(s) and written disclosure if buyer is not satisfied with them. 3. Seller shall furnish Estoppel Letter(s) (or seller’s affidavit if seller is unable to obtain an Estoppel Letter) to buyer at least 10 days prior to closing. 4. Buyer may terminate the contract by delivering written notice to seller within five days after receipt (but no later than five days prior to the closing date) if an Estoppel Letter or seller’s affidavit differs materially from the lease(s) or representations in seller’s written disclosure just described in point 1.
Q: I have a buyer and seller who failed to close on the closing date. Does that mean the contract is null and void?
A: A closing date on a contract is not an expiration date. Therefore, if the parties don’t close on the closing date, the contract still exists. The issues then become why the contract failed to close and whether either (or both) parties breached the agreement.
Q: Under the “AS IS” Residential Contract For Sale And Purchase (FloridaRealtors/FloridaBar-ASIS-3), do the parties include weekends when calculating time periods?
A: Yes. 18(F) of the contract, entitled “Time,” provides that calendar days shall be used in computing time periods. Keep in mind, however, that any specified time period or date that ends or occurs on a Saturday, Sunday or national legal holiday will extend to 5 p.m. (where the property is located).
Q: A buyer and seller entered into an AS IS Residential Contract for Sale and Purchase (Florida Realtors/FloridaBar-ASIS-3). The buyer decided to cancel the contract during the inspection period, but never provided a reason or did an inspection. Does the seller get the deposit money?
A: Probably not, as the language in Paragraph 12 of that contract doesn’t state that the buyer must perform an inspection or provide a reason for cancelling the contract. The option to terminate resides in the buyer’s “sole discretion.” As with any contractual interpretation question, the language of the contract is paramount in determining the rights of the parties, so our advice is to always suggest to the parties that they seek legal advice from a licensed professional if they wish to gather further information about contract rights.
Q: I represent a seller who entered into an “AS IS” Residential Contract For Sale And Purchase (FloridaRealtors/FloridaBar- ASIS-3). Although there’s a large and expensive children’s playhouse in the backyard, the property description in Section 1 of the contract doesn’t mention it. The seller informed me that she would remove the playhouse and sell it to her neighbor before closing. Can she do this?
A: Possibly, although the seller should seek legal advice as to whether the playhouse is a fixture that she must convey to the buyer at closing. Since this playhouse isn’t specifically described anywhere in Section 1(d), the question is whether it’s an improvement or fixture, which would convey to the buyer under Section 1(c). Unfortunately, this hinges on a case-by-case analysis of whether an item, regardless of size, has become affixed to the soil or some structure legally a part of the soil. If the parties litigate, the court would analyze various factors, which have all been honed after years of legal argument, to determine the answer. Unfortunately, sometimes the law doesn’t provide the black-and-white answers we would prefer, so items like this are best addressed by inserting a clear description of the property to be conveyed in the contract.
Q: May a buyer request that the seller make repairs to the property under a Florida Realtors/Florida Bar AS IS Residential Contract For Sale And Purchase?
A: Although a buyer may always request that the seller consider amending the contract, the seller is not obligated to repair the property. If the buyer isn’t satisfied with any aspect of the property, as determined at his/her sole discretion, he/she may terminate the contract before the inspection period expires. Since the as-is aspect of the contract is a central theme referenced throughout, we recommend that parties wanting to make the contract more like a formal inspection and repair contract hire a lawyer to draft the amendment.
Q: I represent a buyer. My buyer submitted a full-price, cash offer. The listing broker told me that he timely presented the offer to the seller, but that the seller decided to accept another offer. I now see that the property sold for $10,000 less than the asking price. Is it legal for the seller not to accept my buyer’s full-price offer?
A: Yes. No one can ever force a seller to execute a contract, even if the offer contains all the requirements stipulated in a listing agreement. Remember, a seller’s decision is not always based on dollar amount alone, and therefore, it should not be evaluated in a vacuum. For example, perhaps the lower offer included an earlier closing date.
Q: My customer wants to have an appraisal done. If the property fails to appraise for an acceptable amount, she wishes to have the option to get out of the contract. Is there an appraisal contingency built into the Florida Realtors/Florida Bar Contract?
A: No, there is no clear appraisal contingency built into the core contract. In the event a customer wishes to have the options stated in your question, she should use the Addendum F, Appraisal Contingency. Many people believe (wrongly so) that the language in the contract financing paragraph acts as an appraisal contingency in all cases. The appraisal language in the financing provision is operative only in the event the contract is written to contain a financing contingency, and even then, it would not allow a buyer the right to terminate the contract in the event of a low appraisal.
Q: A real estate contract can be a complicated document containing multiple time periods (i.e., loan approval/commitment periods, inspection period, title review period, etc.). I’m worried that in the event my customer asks me to modify a time period, I may be creating some form of legal ambiguity in the contract. Does Florida Realtors® have any form that might aid us in making these modifications to time periods?
A: The Extension Addendum to Sale and Purchase Contract, or EA-2, available on Florida Realtors Form Simplicity™, gives members a quick, easy way to modify common contractually defined time periods. Simply check the box (or boxes) for the time period(s) you wish to modify and have the addendum executed by the parties. Your concern about creating legal ambiguities is always a challenge associated with a contract modification. As always, if you are concerned about the proper way to modify a contract, refer your customer to a legal professional for assistance.
Q: I represent a buyer who’s in the middle of a divorce and who’s scheduled to close on a house before the divorce is final. She alone qualified for the financing, and she’s taking title in her name only. The lender is insisting that her soon-to-be-former husband sign the mortgage agreement. Why?
A: The mortgage agreement gives the lender the right to foreclose if the borrower defaults on the loan. However, a spouse who hasn’t signed the mortgage agreement may be able to assert homestead rights, making it difficult for the lender to foreclose. So, if property could be considered the buyer’s homestead, most lenders will require the non-owning spouse to sign the mortgage agreement for the sole purpose of waiving homestead rights. Therefore, it’s a good idea for the mortgage to include language stating that the spouse is signing only to satisfy the spousal joinder requirement contained in the Florida Constitution and that the spouse is not assuming any liability or obligations in the note or mortgage. In addition, the non-owning spouse should always review the mortgage agreement carefully to ensure the terms are consistent with his or her understanding.
Q: I’m representing a buyer who made an offer to purchase a residential property. The offer gave the seller three days to accept the offer. The buyer no longer wants to purchase this property and wants to withdraw the offer. The seller hasn’t accepted the offer, and there are two days left until the time-of-acceptance period expires. May the buyer withdraw this offer?
A: Yes. An offer may be withdrawn any time prior to acceptance, even if the time-of-acceptance period hasn’t expired. The withdrawal may be done by verbal or written communication; however, a written withdrawal is recommended.
Q: My buyer made an offer, and the seller made a counteroffer. My buyer countered the seller’s counteroffer, and the seller rejected it. Now, my buyer wants to go ahead and accept the seller’s original counteroffer. May he?
A: No. The buyer’s counteroffer served as a rejection of the seller’s counteroffer. Since the seller’s counteroffer was rejected it may no longer be accepted.
Q: I have a listing for a residential bank-owned property (REO). The property is in a community with a mandatory homeowners’ association (HOA). Is the disclosure summary for the community required to be part of the sale and purchase contract if the property is bank owned?
A: Yes. Section 720.401(1)(a), Florida Statutes, provides that when a residential property is located in a community with a mandatory HOA, the sale and purchase contract shall refer to and incorporate the disclosure summary. There’s no exception for bank-owned properties. In addition, Section 720.401(1)(c), Florida Statutes, provides that if the disclosure summary is not provided to a buyer before he or she executes the sale and purchase contract, the buyer may void the contract. This must be done by delivering written notice to the seller or the seller’s agent within three days after receipt of the disclosure or prior to closing, whichever occurs first. Both the Florida Realtors CRSP-13 Homeowners' Association Addendum and the Florida Realtors/Florida Bar Homeowners’ Association/Community Disclosure rider (CR-3 B) contain the required disclosure summary.
Q: I’m representing a customer with an executed contract. The contract has inconsistencies between the preprinted provisions and the handwritten addendum. The handwritten addendum is in direct conflict with some of the preprinted terms on the contract. Which terms will govern?
A: Handwritten and typed terms will generally prevail over preprinted terms that are in direct conflict.
Q: I represent a buyer with an executed Florida Realtors/Florida Bar Contract For Residential Sale And Purchase or Florida Realtors Contract For Residential Sale And Purchase contract. My buyer is working with his lender but needs some additional time to secure his financing. Should I ask for an extension to the closing date to make sure that my buyer has enough time to get his financing?
A: Not only do you need to request that the seller grant an extension for the closing date, but it’s recommended that you also request an extension to the financing contingency term. Extending the closing date doesn’t automatically extend the buyer’s time in which to obtain financing. Generally, a contract that’s contingent on financing includes a timeframe during which the buyer can apply for and secure financing. Depending on the contract’s terms and financing contingency, buyers may risk losing their escrow money if they aren’t able to secure financing before their financing contingency term expires.
Q: Is a Seller’s Real Property Disclosure form required?
A: No. Although the form itself is not a legal requirement, the seller still has a duty to disclose to the buyer all known facts not readily observable that materially affect the value of the property. Although the seller may make this disclosure verbally, Florida Realtors attorneys recommend that it be made in writing.
Q: On one of my listings, a buyer (“Buyer 1”) submitted an offer, and my seller counteroffered. While the seller was awaiting Buyer 1’s response, another buyer (“Buyer 2”) submitted an offer. May the seller withdraw his counteroffer to Buyer 1 before the time for acceptance specified in the counteroffer?
A: Yes. An offer/counteroffer may be withdrawn at any time prior to its having been accepted in accordance with the contract form’s term. This is true even if the time of acceptance contained in the offer/counteroffer has not expired.
Q: My buyer submitted an offer on a house, and the seller accepted it yesterday. The buyer has changed his mind, and feels that because the house is in a mandatory homeowners’ association that there is a three-day rescission period in which he can cancel without incurring liability. The seller provided the buyer with the “Disclosure Summary” pursuant to Section 720.401, Florida Statutes and the contract also complies with Section 720.401 requirements. Does the buyer have a three-day right to cancel?
A: No. Unless the contract includes a provision giving the buyer three days to cancel, the buyer would not have such a right.
Q: If a seller makes a counteroffer to the buyer’s offer, may the seller later revoke the counteroffer and accept the buyer’s original offer?
A: No. When a counteroffer is made, the buyer’s original offer is terminated and can no longer be accepted.
Q: I have a listing that was only on the market a couple of days when three offers came in from three buyers. The seller accepted one of the offers. Now, the broker who represents the buyer whose offer arrived first claims my seller had an obligation to negotiate with his buyer because his offer was presented to the seller first. Is this true?
A: No. There is no Florida law that would require the seller to respond to any offer. Additionally, there is no Florida law that requires the seller to negotiate with each buyer in the order in which the offers were received.
Q: After entering into a contract for sale/purchase with the seller, the buyer decided that he’d rather close in March than on the January 30 closing date contained in the contract. We sent an addendum requesting an extension of the closing date to March 1, but the seller rejected our request. Do we still have an enforceable contract?
A: Yes. The fact that the parties failed to reach a meeting of the minds on a proposed modification doesn’t affect the enforceability of the existing contract.
Q: I represent a buyer who made an offer on a For Sale by Owner (FSBO) property. I asked the seller to provide written confirmation of her decision to reject the buyer’s offer, but she refused. Isn’t the seller required to provide written confirmation of her rejection upon request?
A: No. There is no law that requires either party to communicate in writing his or her decision to reject the other’s offer.
Q: Does Florida law mandate that the real estate closing take place in the county where the real property is located?
A: No. However, many contract for sale/purchase forms include pre-printed provisions indicating where the closing must take place.
Q: A seller who listed her home with me notified me today that she is terminating her listing agreement. She claims that under Florida law she has a 72-hour right of rescission. I’ve been in the business for some time and haven’t heard of any such law. Does the seller have a 72-hour right of rescission?
A: There is no Florida law that affords the seller such a right of rescission. Therefore, unless the listing includes a provision giving the seller such a rescission right, the seller isn’t entitled to cancel without incurring potential liability to the broker.
Q: The buyer in a transaction is a Navy SEAL. The buyer entered into an contract with a seller to buy a home in Florida. Prior to closing, the buyer received permanent change of station orders from his commanding officer, transferring him to California. May the buyer terminate the contract?
A: Yes. Section 689.27(2)(a), Florida Statutes, provides: “Any service member may terminate a contract to purchase property, prior to closing on such property, by providing the seller or mortgagor of the property with a written notice of termination to be effective immediately, if . . . the service-member is required, pursuant to permanent change of station orders received after entering into a contract for the property and prior to closing, to move 35 miles or more from the location of the property.”
Either a copy of the official military orders or a written verification signed by the service member’s commanding officer must accompany the notice.
Q: Is my seller required by law to accept a full-price offer?
A: No. There is no Florida law that would require the seller to accept any offer.
Q: My seller has received offers from several buyers. She now wants to counter all of them in writing. Is this allowed?
A: While a seller is permitted to counter, in writing, more than one offer at the same time, doing so is not advisable. If the seller counters in writing more than one offer and each counter is accepted before the seller is able to communicate an intent to withdraw her counter to one of the buyers, the seller could be bound to multiple written contracts and thus have potential liability to those buyers.
Q: I’m a single agent for a buyer and have written an offer using the Florida Realtors Contract for Residential Sale and Purchase contract form. The seller’s single agent is telling me that his brokerage prefers the Florida Realtors/Florida Bar Residential Contract For Sale And Purchase form and that they won’t present the offer to his seller. May they do that?
A: It depends. Section 475.278(3)(a), Florida Statutes, provides that a single agent must present “all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise in writing.” Therefore, if the seller has previously directed his or her single agent in writing that he or she shouldn’t be presented with any offers written on the Florida Realtors contract form, then it would not be a violation for the seller’s single agent to refuse to present it to the seller. If the seller hasn’t so previously directed his or her single agent in writing, then the agent must timely present the offer.
Q: How does a buyer assign his or her rights in a sales contract to another party?
A: Buyer 1 (assignor) and Buyer 2 (assignee) should enter into a written Assignment of Agreement, which should be drafted by one of their attorneys.