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Most significant change in FAR/BAR update? Financing clause

By Marcia Tabak
 

Feb. 20, 2017 – The real estate industry changes, and when it does, the Florida Realtors/Florida Bar contract gets updated. The next version of the FloridaRealtors/FloridaBar Residential Contract and its As Is companion debuts April 4, 2017. In the meantime, a redline version of the contract changes (additions in blue, deletions in red) is posted on Florida Realtors' website along with an explanation of the revisions.

Some changes are housekeeping tasks. Some require a bit more study, and a future article will focus on those. For now, however, the new version of Paragraph "8(b) Financing" clause deserves your focus. You need to understand what will change.

Changes prompted by lending industry

There are several reasons for the financing change, in part because the lending industry itself has changed. The contract no longer mentions "Loan Commitment," for example, because the lending industry has largely dropped the term. It's being replaced by the term "Loan Approval," and the term "Loan Commitment Period" has become "Loan Approval Period."

In addition, the default time for "Loan Approval Period" will also change back to 30 days from 45 days. This change was made because loan approvals are no longer being slowed down by TRID (TILA/RESPA Integrated Disclosure Rule), the financial regulations that went into effect in the fall of 2015.

Finally, a requirement in the current version of the contract – "this contract is contingent upon buyer obtaining a written loan commitment,"– has been changed, and the "written" component has been deleted.

Change in philosophy regarding buyer's right to cancel

In general, many members feel parts of the current financing clause are confusing. In particular, Florida Realtors has received many questions about either party's right to cancel the contract up to seven days prior to closing when a buyer didn't timely obtain a loan. The new version of the contract scraps this concept in favor of a new approach. As always, the devil is in the details.

The new financing clause requires a buyer to promptly notify a seller, in writing, when a Loan Approval is obtained. If a buyer does not obtain Loan Approval within the Loan Approval Period, then the buyer may notify the seller – again, in writing – and elect to either terminate the contract or waive Loan Approval. However, the buyer no longer has a unilateral contractual right to terminate the contract for failure to obtain Loan Approval after the Loan Approval Period.

Further details: If a buyer doesn't give the seller any kind of written notification during the Loan Approval Period, new language specifies Loan Approval will be considered obtained. This results in the buyer's deposit being at risk if he fails to close unless the buyer's failure is caused by items set out in Paragraph 8 (b)(vii).

There is an exception to the contract going forward if a seller has received no written notification at all – either that a loan has been obtained or the buyer cannot get one. The seller may unilaterally cancel the contract by giving buyer written notice within a three-day period after the buyer's Loan Approval Period has expired. But if the seller does nothing during the three-day period following the Loan Commitment Period, the seller has no further unilateral opportunity to terminate the contract based on the buyer's failure to obtain Loan Approval or failure to provide the seller a written notice.

Other highlights of 8(b) Financing clause changes

  1. If the lender requires that a buyer sell an existing property, this will not be considered Loan Approval.
  2. When applying for a loan, what is a "diligent effort" on the buyer's part? New language now specifies this requires the buyer to "timely" provide documents, information, payment of fees and charges per lender requirements.
  3. An additional clause authorizes the closing agent to share the settlement statement and Closing Disclosure with the seller and real estate brokers. Note, however, that this doesn't obligate the closing agent to share the documents and it might violate the lender's closing instructions.
  4. What if the buyer finds that he can't secure Loan Approval before the Loan Approval Period expires? This caused some confusion in the past, but no longer. A buyer who has used due diligence but is unable to obtain Loan Approval can notify the seller in writing at any time before the Loan Approval Period ends.
  5. One clause, 8(b)(vii), about returning deposits when a deal doesn't close because of a lender's "financial failure" was removed from the new version.

Marcia Tabak is Deputy General Counsel of Florida Realtors

© 2017 Florida Realtors

 

Related Topics: Florida Realtors Legal News