2011 North Carolina Offer To Purchase & Contract

Finally the new North Carolina offer to purchase and contract a la 2011 version for residential real estate is out for preview. Hold tight though, it’s not out for use just yet; a bit of a teaser preview. Truly I have been giddy with anticipation and I can’t wait to use it. Oh if we could use it today that would be wonderful.

Stunningly and startlingly alternative one and alternative two are GONE, blown away by the tides of change, a bad idea whose time has come and whose time has sunk into the vestiges of time. Very few of us ever used alternative two, which for a few more months; is a buyer’s option contract. Buyer still has the option of alternative one, the typical real estate deal with earnest money, investigation, re-negotiation of deficiencies and inevitable squabbles over earnest money with sellers when repairs cannot be agreed upon. Or they can still choose the alternative two stepchild; this alternative allows the buyer to put down both earnest money and option money, option dollars are paid right to the seller and if for ANY reason or NO reason by the end of the option period the buyer doesn’t buy the house, then the seller keeps the option money and everyone walks away no foul. Please insert sarcasm (here!) Folks still squabble and squawk over earnest money.

Well at least let’s hope that’s the case. I was listing agent on a property here in Durham on Camden Ave. and an agent with a company whose logo is a blue rock, brought a buyer and we agreed to an alternative two contract. The option time came and went with a flurry of inspections, investigations, repair requests, negotiations and agreements, etc. etc. etc. Then a somewhat lengthy delay to closing and here’s where we hit ballyhoo. The closing attorney a Mr. Booger (name slightly modified) out of Chapel Hill, well after the option period, for ANY and ALL investigations, where the buyer for ANY or NO reason whatever may terminate and walk away from the contract; decides that late in the game that he was going to order survey, title work etc. to whit he discovers that the subject property’s fence is partially on the neighbor’s yard, just a few inches and in this day and age, easily ignored by everyone. Not that I think this ignorance is a good idea; but it is what we do on the caveat that if in the future the neighbors say move the fence…well then the new owners will move the fence.

Well the good attorney Booger starts to make waves. He even goes so far to say that he doesn’t care what the contract says, that if the seller wants to sell then the fence must be moved. He’s always done his title work late in the game and this is just the way it is. Well so much for an officer of the court upholding the letter of the contract and the law. He was so terrible, so awful and so was the big, blue rock agent; that we on the seller’s side took the fence down so that the property would close, that opened a whole new can of worms; but tough noogies to the buyer, their beef was with THEIR attorney and AGENT. So, I digressed didn’t I? Ah yes the new offer to purchase and contract.

Gone are the days of house systems and structures “functioning the purpose for which intended and not in need of immediate repair.” The buyer now has a “due diligence” period to investigate the property and during that period, for ANY reason or NO reason may terminate the contract and the seller may keep the due diligence fee; take note Mr. Chapel Hill attorney, this includes surveys too. There can still be earnest money, but this needn’t be the case; there can be due diligence money, but this also needn’t be the case. GONE is any discussion about specific systems and inspection. Essentially the process is made easier, buyer comes alone, buyer offers, buyer writes a due diligence check to the seller, buyer prescribes a diligence period and investigates. Buyer may make a repair request but seller doesn’t even need to respond and if buyer isn’t happy with that then they may terminate the contract; but it is gonna cost them the diligence fee; if they move ahead and close, they get a credit for the fee.

So as always the devil is in the details, as a listing agent I am going to push my seller clients to accept just a diligence fee and NO earnest money and this way if the buyer terminates everyone walks away. I love it; gone will be the days of a buyer agent just throwing it all against the wall, of low balling, of recommending inept inspectors who will scuttle a deal. In reality I see all parties getting very serious when a home is under contract. Hopefully the days of willie, nillie walking away from a binding contract are numbered; of course we’re always going to have to deal with the odd ball attorney who doesn’t believe in following the written contract…but hopefully they too will become fewer and further between.

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