Conditions and Clauses You May See In An Offer
Buying or selling a home can be complicated and stressful. To ensure all parties are properly protected, there are regulated procedures and documents that are used for purchases and sales. It is your Realtor’s® job to make sure you fully understand the terms, language and information outlined in this paperwork. Although contracts used in the real estate process are, for the most part, standardized, your offer may contain any number of clauses or conditions that you should fully understand because they can have an impact on how the purchase/sale plays out and whether or not the transaction firms up. Here are some of the clauses and conditions you may see in an offer.
conditions and clauses you may see in an offer
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For home sellers
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We all know that when it comes to real estate and you want to make an offer on a property or are lucky enough to receive one as a seller, the natural reaction is to get excited. But first thing’s first – you need to look at all of the details of the offer before you’ll know how best to respond to it. Your Realtor® should take the time to review every element of the offer with you – from the offering price and closing date to the details of any conditions and any clauses outlining tasks to be completed before closing day.
If the offer includes conditions (a home inspection, financing approvals or testing on the well and/or septic systems, for example), you need to know how long the buyer thinks they’ll need to get these tasks completed, who is expected to pay for them and what happens if the results are not as expected. These types of conditions can either be completed with a Notice of Fulfillment or they can be waived by the buyers if they feel confident in progressing with their offer.
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New to real estate? Here’s what a standard home inspection condition looks like:
This Offer is conditional upon the inspection of the subject property by a home inspector of the Buyer’s choice and at the Buyer’s expense, and the obtaining of a report satisfactory to the Buyer in the Buyer’s sole and absolute discretion. Unless the Buyer gives notice in writing delivered to the Seller personally or in accordance with any other provisions for the delivery of notice in this Agreement of Purchase and Sale or any Schedule thereto not later than 05:59 PM on the Jan 1, 2023, that this condition is fulfilled, this Offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction. The Seller agrees to co-operate in providing access to the property for the purpose of this inspection. This condition is included for the benefit of the Buyer and may be waived at the Buyer’s sole option by notice in writing to the Seller as aforesaid within the time period stated herein.
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For home buyers
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If you’re the buyer in an offer situation, the documentation is the same but the relevance of some of the conditions can be more meaningful – because most conditions are put in place in order to allow the buyer to get a good feel for exactly what they’re buying. Again, you need your agent to review each element of the offer with you to make sure you are properly protected. Do you know for certain what state the structure of the home is in? Can you be confident that you have a mortgage approval in place? Do you feel comfortable with the state of the furnace, water treatment and other equipment? If not, there should be clauses or conditions related to those elements in your offer so that you have the opportunity to have things examined by experts before you agree to a firm deal.
waiver or nof
Again, when these elements have been addressed, they can be fulfilled or waived with signatures on standard forms that will be prepared by your agent. Your lawyer will be looking for copies of the full offer and any Notices of Fulfillment or Waivers so that they can be sure that each condition noted in the offer has been dealt with satisfactorily. These elements don’t have to be huge, either. For example, maybe the offer states that the seller will get a hole in the wall repaired before a certain date. Your agent and lawyer will both need to be provided with copies of receipts that prove the work was completed as expected.
Conditions must be shown to be complete by way of a Waiver or Notice of Fulfillment. Clauses don’t require the same paperwork. Sometimes, it’s enough if the seller gives you his word. This can be done with the inclusion of a clause or warranty in your offer. Clauses or warranties can be used instead of conditions if they do not require the seller to complete any action in order to satisfy the buyer. When a seller accepts an offer, he is by extension, confirming the content of any clauses or warranties.
sample clause
Not clear on what a clause or warranty might look like? Here’s an example:
The Seller represents and warrants that to the best of the Seller’s knowledge and belief, during the time the Seller has owned the property, the property and the buildings and structures thereon have not been used for any criminal use or activity, that no deaths have occurred on the property and that the property and the buildings and structures thereon have never been used for any criminal use or activity. The seller further warrants and represents to the best of his or hers knowledge and belief, that cannabis has not been grown on the property outside of the legal limits and that the property has not been used as a drug lab of any kind. These warranties shall survive and not merge on the completion of this transaction.
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When you’re ready to get into the real estate market, one of the most important elements for you to consider is the agent who will represent you. Talk to a few agents and go with the one you feel most comfortable with. This is the person who will be directly involved in what is likely one of the biggest financial decisions you’ll ever make. You need to be sure you trust his/her judgement, that they are knowledgeable and experienced and that you’re confident your best interests will be protected.
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