Although home buyers sign a never ending pile of legal documents to purchase a home, arguably?the most important document in the entire transaction is the purchase and sale agreement. In Oklahoma, the purchase and sale agreement most often used is the so-called “OKLAHOMA UNIFORM CONTRACT OF SALE OF REAL ESTATE (Surface Rights Only)” form supplied by the Oklahoma Real Estate Commission or one modeled very closely to this?form. The ?standard? form purchase and sale agreement is, however, far from standard.
From a buyer?s perspective, there are two major problems with the ?standard? form purchase and sale agreement:
1. ?It favors the seller, and
2. ?It?doesn’t?adequately address such important issues as seller repairs, septic system compliance, radon gas, UFFI insulation, lead paint, mortgage rate lock expiration, certain?title issues, and buyers? access to the property while it is under agreement.
There are also deficiencies from a seller?s perspective as well.? This is why it?s imperative that home buyers and sellers alike retain an Oklahoma real estate attorney to?modify the ?standard? form purchase and sale agreement in order to best?protect all parties? rights and remedies, and customize the agreement to the?particular aspects of the transaction. This can be done through a ?rider??to the uniform purchase and sale agreement. In fact, the buyers? attorney and the?sellers? attorney can attach two different riders to the agreement. My preference is to use my own form of agreement, especially in for sale by owner transactions where there is no broker involvement.
I?ll outline a few common issues not addressed adequately in the ?standard? purchase and sale agreement. (Most of these are from the buyer?s?perspective).
The ?standard? purchase and sale agreement does provide a basic mortgage contingency which?gives the buyer the option of terminating the agreement if mortgage financing falls through.?However, for a buyer, the more specific you are in terms of interest rate, points, name of lending institution and definition of diligent efforts, the better. Buyers? counsel should specify that the buyer will not be required to apply to more than one institutional lender currently making?mortgage loans of the type sought by the buyer, and that the buyer may terminate the purchase?and sale agreement unless the buyer obtains a firm, written commitment for a mortgage loan.
Although not common in Oklahoma, the better practice is for prospective buyers to complete the home inspection process?prior to signing the purchase and sale agreement,?and any inspection contingency provision becomes mainly for the purpose of the bank’s appraisal. However, what happens if the?inspection results are not ready before the signing date or if the seller has agreed to perform repairs prior?to the closing or give a credit at closing? In this case, a?home inspection contingency clause should be clearly worded and, any seller repairs or closing credits should be meticulously detailed.
If the home is serviced by an on-site sewage disposal?system otherwise known as a septic system, inspection of the system is required. Failed septic systems can cost many?thousands of dollars to repair or replace.? Thus, buyers?would look to be released from the agreement if the?septic system fails inspection.? Alternatively, buyers?could be given the option to close if the seller can repair?the septic system during an agreed upon time period,?provided that the buyers do not lose their mortgage rate?lock.
Radon is a naturally occurring radioactive gas. The ground produces the gas through the normal?decay of uranium and radium. As it decays, radon produces new radioactive elements called?radon daughters or decay products which scientists have proven to cause lung cancer. Radon?testing should be performed by buyers during the home inspection process. Elevated levels of?radon (above 4.0 picoCuries per liter (pCi/l) can be treated through radon remediation systems. The purchase and sale agreement should provide for a radon testing contingency and the buyers? ability to terminate the agreement if elevated radon levels are found, or the option of having the sellers pay for a radon remediation system.
Buyers of property are entitled to have the property?inspected for the presence of lead paint.?? (Sellers are not required to remove lead paint in a sale?situation). Because the abatement of lead paint can be costly, buyers typically look for a right to?terminate the purchase and sale agreement if lead paint exists and the abatement/removal of it?exceeds a certain dollar threshold.
Often, when a buyer has signed the Purchase ans Sale Agreement, she can’t wait to get in there?with her tape measure, paint chips and fabric swatches. Oftentimes overlooked but a cause of?friction, is buyers? ability to access the house prior to the closing. To avoid such friction, an?access clause should be added to the purchase and sale agreement giving the buyer reasonable?access at reasonable times with advance notice to the sellers-it?s still their house after all.
These are just a few of the issues not adequately addressed by the ?standard? form purchase and sale agreement. There are many more. ?Don’t?make the mistake of relying on advice from brokers and agents. Brokers and agents serve one function ? to bring the parties together. Unfortunately, in their effort to create more ?value? for the consumer, real estate brokers have pushed that envelope in an effort to facilitate closing the deal. Properly, their role is still the one function. Oklahoma permits this function to go as far as helping the buyer fill in the blanks of an approved “Uniform” form of real estate contract (and you know what I think of that form), but Oklahoma law does NOT permit brokers to make changes to the form. ?Brokers will try to skirt this limitation by the use of addenda in which they take an active hand.
Consider however, that it is the duty of lawyers to advise clients on the contracts themselves ? “Uniform” contract and addenda alike (so that they?re helping the buyer frame the blueprint for the deal, rather than being kept out until it?s signed up) ? and then to work to close the deal, getting proper title insurance coverage, helping to obtain a survey and reviewing it, reviewing the form of deed and bill of sale and their contents, etc.
I urge you to consult a qualified real estate attorney to help you draft the ideal Oklahoma ?Uniform? purchase and sale agreement for you.