The Offer to Purchase and Contract form used by most real estate brokers and consumers in residential sales transactions contains two alternatives for addressing “Property Inspection/Investigation issues. Yet, Alternative 2 has been rarely used. Rumor has it that starting January 2010, Alternative 2 may be the only Alternative in the Contract.
Under Alternative 1 there are multiple dates and deadlines to meet in order for the buyer to retain his/her right to conduct investigations, inspections, and negotiate repair requests. Also, the buyer may request repairs only as to property conditions which meet the standards specified in the contract for “Necessary Repairs.” A buyer may terminate the contract if the seller does not respond in a timely manner to a buyer’s request and the buyer then receives his/her earnest money back.
Sometimes, however, brokers can encounter the following issues when using Alternative 1:
- Is an item a “covered” or an “eligible” repair?
- Is an item performing its intended function or is it in need of immediate repair?
- Are the repair requests timely?
- Is the estimated cost of repairs submitted by the buyer reasonable?
- Has the contract been terminated, allowing the seller to accept other offers?
Alternative 2 may be more effective in dealing with various property inspections and repair issues:
- There is only one date to remember–the option termiantion date–that’s it.
- Virtually anything may be renegotiated between a seller and buyer up until the expiration of the option period.
I think one of the main reasons brokers and consumers have stayed away from Alternative 2 is because of the difference between the terms “earnest money” and “option fee.” Alternative 1 stipulates that a buyer may terminate the Offer and receive his/her earnest money back if the inspection does not go well, but only if the repair is “covered” or “eligible” in the contract. In Alternative 2, however, a buyer is asked to pay the seller an nonrefundable option fee with an option termination date. By the termination date, the buyer can terminate for “any and all reasons” and not continue with the contract. The seller then keeps the option fee. If the buyer decides to continue the contract, the option fee goes towards the purchase price.
The seller receives some consideration for the option period in Alternative 2, as opposed to none under Alternative 1, and the option period may not be any longer than the inspection period requested by an Alternative 1 buyer. There are far fewer dates and deadlines to remember and the issues which may be neogtiated are wide open–there are, literally, no limitations.
If you have any questions about Alternative 1 or Alternative 2, please ask one of the agents on the Service Team. We’re here to help keep it simple.