Thursday, September 25, 2008

Drafting contingencies

A lawyer on a listserv I subscribe to asked a good question today that I had to answer: what happens if a contract contingency is not met? The buyer is refusing to close and the seller wants to take the earnest money. The answer? Of course, it depends. But you knew that.

This is where good lawyering comes in. If you are the buyer, of course you want every chance to try to have wiggle room. But if you are the seller, you want to craft any contract contingencies as tightly as you can to curtail the buyer's ability to walk. Notices, efforts, deadlines...there are a lot of ways to do it. If you don't do this as a lawyer, then you could be allowing your buyer a rather lengthy free look at property with an easy out.

Let me give one concrete example: let's say you have a financing contingency in the contract. How do you draft the timing of the contingency? If the buyer fails to give notice, does the contract terminate automatically or is the contingency automatically waived? Neither? What about the efforts required? Does the buyer have to prive it tried to find a loan? Can the seller try to get the loan for the buyer or offer to carry the property? Does the seller have to cooperate in chasing down estoppels or subordnation agreements? And yes, I am stopping before I really get started. My time is my money, after all.

Just a humble thought for the day. Enjoy!

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