Standard Terms: Attachment to Offer - Florida

By Home Bay

Posted on October 4th, 2019
  1. Disclosures & Waiver of Claims:

    a. Radon is a naturally occurring radioactive gas. When it accumulates indoors in sufficient quantities, it can present health risks to persons exposed. Throughout the United States, including in Florida, there are buildings that contain levels of radon that exceed federal and state guidelines. You should contact the county health department covering the area in which the Property is located for additional information.

    b. Except as may have been disclosed by Seller to Buyer in a written disclosure, Seller is unaware of any improvements made to the Property which were made without required permits or made pursuant to permits which have not been properly completed.

    c. Mold is naturally occurring and may cause health risks or property damage. Buyer is advised to contact a mold specialist to inspect the Property.

    d. Buyer is advised to verify by elevation certificate which flood zone the Property is in, whether flood insurance is required by Buyer’s lender, and what restrictions apply to improving the Property and rebuilding in the event of casualty. If Property is in a “Special Flood Hazard Area” or “Coastal Barrier Resources Act” designated area or otherwise protected area identified by the U.S. Fish and Wildlife Service under the Coastal Barrier Resources Act and the lowest floor elevation for the building(s) and /or flood insurance rating purposes is below minimum flood elevation or is ineligible for flood insurance coverage through the National Flood Insurance Program or private flood insurance as defined in 42 U.S.C. §4012a, Buyer may terminate the Agreement by delivering written notice to Seller within 20 days after Acceptance, and Buyer shall be refunded the Earnest Money Deposit, thereby releasing Buyer and Seller from all further obligations under the Agreement. If Buyer fails to so do so, Buyer accepts existing elevation of buildings and flood zone designation of Property. The National Flood Insurance Program may assess additional fees or adjust premiums for pre-Flood Insurance Rate Map (pre-FIRM) non-primary structures (residential structures in which the insured or spouse does not reside for at least 50% of the year), and an elevation certificate may be required for actuarial rating.

    e. Buyer acknowledges receipt of Florida Energy-Efficiency Rating Information Brochure required by Section 553.996, F.S.

    f. If Property includes pre-1978 residential housing, Buyer acknowledges receipt of a lead-based paint disclosure.



    i. Seller shall inform Buyer in writing if Seller is a “foreign person” as defined by the Foreign Investment in Real Property Tax Act (“FIRPTA”). Buyer and Seller shall comply with FIRPTA, which may require Seller to provide additional cash at Close of Escrow. If Seller is not a “foreign person,” Seller can provide Buyer, at or prior to Close of Escrow, a certification of non-foreign status, under penalties of perjury, to inform Buyer that no withholding is required. Buyer and Seller should seek legal counsel and tax advice regarding their respective rights, obligations, reporting and withholding requirements pursuant to FIRPTA. Seller shall deliver to Buyer and Escrow within 7 days from Acceptance an affidavit sufficient to comply with federal (FIRPTA) and the equivalent state withholding Law.

    j. Seller knows of no facts materially affecting the value of the Property which are not readily observable and which have not been disclosed to Buyer. Except as provided for in the preceding sentence, Seller extends and intends no warranty and makes no representation of any type, either express or implied, as to the physical condition or history of the Property. Except as otherwise disclosed in writing, Seller has received no written or verbal notice from any governmental entity or agency as to a currently uncorrected building, environmental or safety code violation.

    k. Broker advises Buyer and Seller to verify Property condition, square footage and all other facts and representations made pursuant to the Agreement and to consult appropriate professionals for legal, tax, environmental and other specialized advice concerning matters affecting the Property and the transaction contemplated by the Agreement. Broker represents to Buyer that Broker has not physically been to the Property and that all representations (oral, written or otherwise) by Broker are based soley on Seller representations or public records. Buyer should conduct investigations of the entire Property in order to determine its present condition and to include in said inspections checking whether additions or improvements are built to code, have necessary permits, and comply with applicable laws. Buyer shall deliver copies of any inspection reports to Seller at no cost to Seller. BUYER AGREES TO RELY SOLELY ON SELLER, PROFESSIONAL INSPECTORS AND GOVERNMENTAL AGENCIES FOR VERIFICATION OF PROPERTY CONDITION, SQUARE FOOTAGE AND FACTS THAT MATERIALLY AFFECT PROPERTY VALUE AND NOT ON THE REPRESENTATIONS (ORAL, WRITTEN OR OTHERWISE) OF BROKER. Buyer and Seller (individually, the “Indemnifying Party”) each individually indemnifies, holds harmless, and releases Broker and Home Bay, Inc. and the officers, directors, agents and employees of Broker and Home Bay, Inc. (collectively, the "Indemnified Parties") from all liability for loss or damage, including all costs and expenses, and reasonable attorney’s fees, suffered or incurred by the Indemnified Parties in connection with or arising from claims, demands or causes of action instituted by Buyer or Seller based on: (i) inaccuracy of information provided by the Indemnifying Party or from public records; (ii) Indemnifying Party’s misstatement(s) or failure to perform contractual obligations; (iii) Broker’s performance, at Indemnifying Party’s request, of any task beyond the scope of services regulated by Chapter 475, F.S., as amended, including Broker’s referral, recommendation or retention of any vendor for, or on behalf of Indemnifying Party; (iv) products or services provided by any such vendor for, or on behalf of, Indemnifying Party; and (v) expenses incurred by any such vendor. Buyer and Seller each assumes full responsibility for selecting and compensating their respective vendors and paying their other costs under this Agreement whether or not this transaction closes. This paragraph will not relieve Broker of statutory obligations under Chapter 475, F.S., as amended. For purposes of this paragraph, Broker will be treated as a party to the Agreement, and this paragraph shall survive Close of Escrow or termination of the Agreement.

    l. To the extent permitted by law, Buyer waives any claims against Seller, against any real estate licensee involved in the negotiation of the Agreement and the Indemnified Parties (as defined above) for any damage or defects pertaining to the physical condition of the Property that may exist at Close of Escrow or be subsequently discovered by Buyer. This provision does not relieve Seller’s obligation to disclose facts materially affecting the value of the Property which are not readily observable, as set forth above. This paragraph shall survive Close of Escrow.

    m. Buyer may, at Buyer’s expense, have the Property surveyed and certified by a registered Florida surveyor. If Seller has a survey covering the Property, a copy shall be furnished to Buyer and any broker for Buyer within 5 days after Acceptance. If Survey discloses encroachments on the Property or that improvements located thereon encroach on setback lines, easements or lands of others, or violate any restrictions, covenants or applicable governmental regulations, Buyer shall deliver written notice of such matters, together with a copy of Survey, to Seller within 5 days after Buyer’s receipt of Survey, but no later than Close of Escrow. If Buyer timely delivers such notice and Survey to Seller, such matters identified in the notice and Survey shall constitute a title defect, subject to the cure obligations related to title and set forth herein. If Seller has delivered a prior survey, Seller shall, at Buyer’s request, execute an affidavit of “no change” to the Property since the preparation of such prior survey, to the extent the affirmations therein are true and correct.

    n. Seller represents that there is ingress and egress to the Property and title to the Property is insurable by a title company without exception for lack of legal right of access.

    o. If Seller, prior to Close Of Escrow, becomes aware of adverse conditions that materially affect the Property, or any material inaccuracy with respect to information previously provided to Buyer, Seller shall promptly provide a subsequent disclosure in writing explaining these items to Buyer. Said subsequent disclosures are unnecessary, however, if Buyer is otherwise aware of the information, or if said information is contained in reports provided to or obtained by Buyer or ordered and paid for by Buyer. If a subsequent disclosure is provided to Buyer, Buyer shall have the right to cancel the Agreement within 5 days after delivery of the information to Buyer. In order to cancel, Buyer shall give Seller written notice.

  2. Condition of Property:

    a. Seller agrees to maintain the Property, including any pool, spa and landscaping, in substantially the same condition as on the date of Acceptance.

    b. Buyer has the right to make a final inspection of the Property, including any items of personal property that convey, within 5 days prior to Close of Escrow. Said inspection is not a contingency of the sale, but solely to confirm that the condition of the Property has been maintained, any repairs have been completed as agreed and Seller has otherwise complied with Seller’s obligations under this Agreement.

  3. Buyer’s Investigation of the Property and Matter Affecting the Property:

    a. Seller shall make the Property available for all Buyer appraisals and inspections. Buyer shall not shall not request or schedule any inspections by any building department inspector or other government employee without the prior written consent of Seller.

    b. Seller shall have all utilities on at the Property through the date of possession by Buyer, including water, gas, electricity and all operable pilot lights.

    c. Buyer shall: (i) keep the Property free of liens; (ii) repair all damage caused by Buyer investigations, inspections or work; and (iii) indemnify and hold Seller harmless from all resulting liability, claims and damages arising out of investigations by Buyer, inspections or work. Buyer shall carry, or Buyer shall require anyone acting on Buyer’s behalf to carry, liability and workers’ compensation insurance, and any other insurance applicable to the inspection being performed. Furthermore, Buyer shall defend and protect Seller from liability for any injuries to persons or property occurring during any investigations by Buyer or work done on the Property at Buyer’s direction prior to Close Of Escrow. Buyer’s obligations under this paragraph shall survive the termination of this Agreement.

  4. Repairs:

    a. Any repairs completed pursuant to this Agreement, such as termite related repairs or repairs pursuant to a mutually agreed request for repair or credit, shall be completed prior to final verification of condition by Buyer unless otherwise agreed in writing by the parties.

    b. Repairs to be performed at Seller’s expense may be performed by Seller or through others, provided that the work complies with applicable laws, including permitting. Repairs shall be performed in a skillful manner with materials of quality and appearance comparable to existing materials. Buyer acknowledges and agrees exact restoration of appearance following all repairs may not be possible.

    c. Seller shall: (i) obtain receipts for repairs performed by others; (ii) prepare a written statement indicating the repairs performed by Seller and the date of such repairs; and (iii) provide copies of receipts and statements to Buyer prior to final verification of condition.

  5. Close of Escrow:

    a. Seller shall remove all debris and personal property not included in the sale no later than Close Of Escrow. Unless the Agreement specifically calls for a tenant to remain in possession, Seller shall, at Close of Escrow, deliver occupancy and possession of the Property free of tenants, occupants and future tenancies. If the Agreement does specifically call for a tenant to reamin in possession, Seller shall, at least 10 days prior to Close of Escrow, furnish to Buyer estoppel letters from tenant(s)/occupant(s) specifying nature and duration of occupancy, rental rates, advanced rent and security deposits paid by tenant(s) or occupant(s) (“Estoppel Letter(s)”). If Seller is unable to obtain such Estoppel Letter(s), the same information shall be furnished by Seller to Buyer within that time period in the form of a Seller’s affidavit. Buyer may thereafter contact tenant(s) or occupant(s) to confirm such information. If Estoppel Letter(s) or Seller’s affidavit, if any, differ materially from Seller’s representations and lease(s) provided, or if tenant(s)/occupant(s) fail or refuse to confirm Seller’s affidavit, Buyer may deliver written notice to Seller within 5 days after receipt of such information, but no later than 5 days prior to Close of Escrow, terminating the Agreement and receiving a refund of the Earnest Money Deposit, thereby releasing Buyer and Seller from all further obligations under the Agreement. Seller shall, at Close of Escrow, deliver and assign all leases to Buyer, who shall assume Seller’s obligations thereunder.

    b. At Close Of Escrow, Seller assigns to Buyer any assignable warranty rights for items included in the sale, such as appliances. To the extent Seller has warranties or manuals associated with items being transferred, Seller shall make them available to Buyer at the Property.

    c. Seller represents and warrants all items included in the Purchase Price, unless otherwise specified in the written disclosures, are owned by Seller and are being transferred to Buyer free of liens and without Seller warranty. Seller shall furnish to Buyer at Close of Escrow an affidavit attesting (i) to the absence of any financing statement, claims of lien or potential lienors known to Seller and (ii) that there have been no improvements or repairs to the Property for 90 days immediately preceding Close of Escrow. If the Property has been improved or repaired within that time, Seller shall deliver releases or waivers of construction liens executed by all general contractors, subcontractors and suppliers in addition to Seller’s lien affidavit setting forth names of all such general contractors, subcontractors and suppliers, further affirming that all charges for improvements or repairs which could serve as a basis for a construction lien or a claim for damages have been paid or will be paid at Close of Escrow.

    d. Buyer shall deposit the balance of the Purchase Price with escrow in sufficient time for Close of Escrow to timely occur.

    e. If extreme weather or other conditions or events constituting “Force Majeure,” as defined below, causes: (i) disruption of utilities or other services essential for closing or (ii) hazard, wind, flood or homeowners’ insurance, to become unavailable prior to closing, the Close of Escrow shall be extended up to 3 days after restoration of utilities and other services essential to closing and availability of applicable insurance. If restoration of such utilities or services and availability of insurance has not occurred within 15 days after the scheduled Close of Escrow, then either party may terminate the Agreement by delivering written notice to the other party, and Buyer shall be refunded the Earnest Money Deposit, thereby releasing Buyer and Seller from all further obligations under the Agreement. "Force Majeure" means hurricanes, earthquakes, floods, fire, acts of God, wars, insurrections and acts of terrorism, and which, by exercise of reasonable diligent effort, the non-performing party is unable in whole or in part to prevent or overcome.

    f. If the Agreement calls for Buyer to obtain a loan, and if closing funds from Buyer’s lender(s) are not available at the Close of Escrow due to Consumer Financial Protection Bureau Closing Disclosure delivery requirements (“CFPB Requirements”), then the Close of Escrow shall be extended for such period necessary to satisfy CFPB Requirements, provided such extension period shall not exceed 10 days.

    g. Close of Escrow will occur in the county where the Property is located at the office of the attorney or closing agent (“Closing Agent”) designated by the party paying for the owner’s policy of title insurance, or, if no title insurance, designated by Seller. Close of Escrow may be conducted by mail or electronically. Prior to Close of Escrow, Seller shall execute and deliver, as applicable, deed, bill of sale, certificate(s) of title or other documents necessary to transfer title to the Property, construction lien affidavit(s), owner’s possession and no lien affidavit(s), and assignment(s) of leases, as applicable. Buyer shall furnish and pay for, as applicable the survey, flood elevation certification, and documents required by Buyer’s lender. The deed shall be recorded upon collection of all closing funds. If the Title Commitment provides insurance against adverse matters pursuant to Section 627.7841, F.S., as amended, the escrow closing procedure required by the paragraph immediatley below shall be waived, and Closing Agent shall, subject to collection of all closing funds, disburse at Close of Escrow the brokerage fees to Broker and the net sale proceeds to Seller.

    h. If Title Commitment does not provide for insurance against adverse matters as permitted under Section 627.7841, F.S., as amended, the following escrow and closing procedures shall apply: (1) all proceeds from Close of Escrow shall be held in escrow by the Closing Agent for a period of not more than 10 days after Close of Escrow; (2) if Seller’s title is rendered unmarketable, through no fault of Buyer, Buyer shall, within the 10 day period, notify Seller in writing of the defect and Seller shall have 30 days from date of receipt of such notification to cure the defect; (3) if Seller fails to timely cure the defect, the Earnest Money Deposit and all closing funds paid by Buyer shall, within 5 days after written demand by Buyer, be refunded to Buyer and, simultaneously with such repayment, Buyer shall return any personal property conveyed, vacate the Property and re-convey the Property and any personal property to Seller by special warranty deed and bill of sale; and (4) if Buyer fails to make timely demand for refund of the Earnest Money Deposit and closing funds, Buyer shall take title as is, waiving all rights against Seller as to any intervening defect except as may be available to Buyer by virtue of warranties contained in the deed or bill of sale.

    i. If, after Aceeptance but prior to Close of Escrow, the Property is damaged by fire or other casualty and cost of restoration (which shall include cost of pruning or removing damaged trees) is 1.5% of Purchase Price or less, cost of restoration shall be an obligation of Seller and Close of Escrow shall proceed pursuant to terms of the Agreement. If restoration is not completed as of Close of Escrow, a sum equal to 150% of estimated cost to complete restoration (not to exceed 1.5% of Purchase Price), will be retained by Closing Agent at Close of Escrow. If actual cost of restoration exceeds said escrowed amount, Seller shall pay such actual costs (but not in excess of 1.5% of Purchase Price). Any unused portion of escrowed amount shall be returned to Seller. If cost of restoration are expected to exceed 1.5% of Purchase Price, Buyer may elect to either take the Property “as is” together with a 1.5% reduction in Purchase Price, or receive a refund of the Earnest Money Deposit, thereby releasing Buyer and Seller from all further obligations under the Agreement. Seller’s sole obligation with respect to tree damage by casualty or other natural occurrence shall be cost of pruning or removal.

  6. Title:

    a. Seller shall deliver title free of all monetary liens not expressly assumed by Buyer, and property taxes shall be prorated as specified in this Agreement. Subject to the foregoing and to Buyer’s right to investigate title prior to removal of contingencies and cancel this Agreement following such investigation, Buyer shall take title to the Property subject to all existing easements, restrictions, claims and other exceptions to title, whether or not of record or referenced in the preliminary report.

    b. Seller shall convey marketable title to the Property by statutory warranty, trustee’s, personal representative’s, or guardian’s deed, as appropriate to the status of Seller, subject only to matters described in STANDARD A and those accepted by Buyer. Personal Property shall, at request of Buyer, be transferred by absolute bill of sale with warranty of title, subject only to such matters as may be provided for in the Agreement.

    c. Within the time period provided in Paragraph 9(c), the Title Commitment, with legible copies of instruments listed as exceptions attached thereto, shall be issued and delivered to Buyer. The Title Commitment shall set forth those matters to be discharged by Seller at or before Closing and shall provide that, upon recording of the deed to Buyer, an owner’s policy of title insurance in the amount of the Purchase Price, shall be issued to Buyer insuring Buyer’s marketable title to the Property, subject only to the following matters: (a) comprehensive land use plans, zoning, and other land use restrictions, prohibitions and requirements imposed by governmental authority; (b) restrictions and matters appearing on the Plat or otherwise common to the subdivision; (c) outstanding oil, gas and mineral rights of record without right of entry; (d) unplatted public utility easements of record (located contiguous to real property lines and not more than 10 feet in width as to rear or front lines and 7 1/2 feet in width as to side lines); (e) taxes for year of Close of Escrow and subsequent years; and (f) assumed mortgages and purchase money mortgages, if any. If there exists at Close of Escrow any violation of items identified in (b) – (f) above, then the same shall be deemed a title defect. Marketable title shall be determined according to applicable Title Standards adopted by authority of The Florida Bar and in accordance with law.

    d. Buyer shall have 5 days after receipt of Title Commitment to examine it and notify Seller in writing specifying defect(s), if any, that render title unmarketable. If Seller provides Title Commitment and it is delivered to Buyer less than 5 days prior to Close of Escrow, Buyer may extend Closing for up to 5 days after date of receipt to examine same. Seller shall have 30 days (“Cure Period”) after receipt of Buyer’s notice to take reasonable diligent efforts to remove defects. If Buyer fails to so notify Seller, Buyer shall be deemed to have accepted title as it then is. If Seller cures defects within Cure Period, Seller will deliver written notice to Buyer (with proof of cure acceptable to Buyer and Buyer’s attorney) and the parties will close the Agreement on Close of Escrow (or if Close of Escrow has passed, within 10 days after Buyer’s receipt of Seller’s notice). If Seller is unable to cure defects within Cure Period, then Buyer may, within 5 days after expiration of Cure Period, deliver written notice to Seller: (a) extending Cure Period for a specified period not to exceed 120 days within which Seller shall continue to use reasonable effort to remove or cure the defects (“Extended Cure Period”); or (b) electing to accept title with existing defects and close the Agreement on Close of Escrow (or if Close of Escrow has passed, within the earlier of 10 days after end of Extended Cure Period or Buyer’s receipt of Seller’s notice), or (c) electing to terminate the Agreement and receive a refund of the Earnest Money Deposit, thereby releasing Buyer and Seller from all further obligations under the Agreement. If after reasonable effort, Seller is unable to timely cure defects, and Buyer does not waive the defects, the Agreement shall terminate, and Buyer shall receive a refund of the Earnest Money Deposit, thereby releasing Buyer and Seller from all further obligations under this Contract.

  7. Dispute Resolution:

    a.Default: If Buyer fails, neglects or refuses to perform Buyer’s obligations under the Agreement, Seller may elect to recover and retain the Earnest Money Deposit for the account of Seller as agreed upon liquidated damages, consideration for execution of this Agreement, and in full settlement of any claims, whereupon Buyer and Seller shall be relieved from all further obligations under the Agreement, or Seller, at Seller’s option, may proceed in equity to enforce Seller’s rights under the Agreement. If for any reason other than failure of Seller to make Seller’s title marketable after reasonable diligent effort, Seller fails, neglects or refuses to perform Seller’s obligations under the Agreement, Buyer may elect to receive return of Buyer’s Earnest Money Deposit without thereby waiving any action for damages resulting from Seller’s breach, and may seek to recover such damages or seek specific performance. This paragraph shall survive Close of Escrow or termination of the Agreement.

    b. Mediation: Buyer and Seller agree to mediate any disputes or claim arising between them that concern or arise out of this Agreement before initiating arbitration or court action. Mediation fees shall be divided equally among Buyer and Seller. A Buyer or Seller who initiates a lawsuit before mediation and/or who refuses or resists mediation shall not be entitled to recover prevailing party attorneys’ fees, even if they would otherwise be available to that party in any such action. Mediation shall be conducted pursuant to Florida Rules for Certified and Court-Appointed Mediators and Chapter 44, F.S., as amended (the “Mediation Rules”). The mediator must be certified or must have experience in the real estate industry. Disputes not settled pursuant to this paragraph may be resolved by instituting action in the appropriate court having jurisdiction of the matter. This paragraph shall survive Close of Escrow or termination of the Agreement.

    c. Exclusions from Mediation: The above mediation provisions do not apply to the pursuit of: (i) filing a lawsuit for the purpose of recording a Notice of Pending Action (lis pendens); (ii) seeking an order of attachment, receivership, injunction or other provisional remedy; (iii) filing or enforcing mechanics liens; (iv) enforcing rights under a deed of trust; (v) seeking eviction; and (vi) requesting relief in Probate Court, Small Claims or Bankruptcy Court. The filing of any of these procedures shall not constitute a waiver of the mediation rights otherwise specified herein.

    d. Attorney Fees: In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller.

  8. Fixtures and Fittings Defined:

    a. “Fixtures and fittings” are built-in appliances; existing electrical, mechanical, lighting, plumbing heating and cooling fixtures; ceiling fans; solar systems; shutters; window coverings; attached floor coverings; television antennas; installed television antennas and satellite dishes; private integrated telephone systems; pool/spa equipment; mailbox; water softeners; water purifiers; security systems/alarms; window and door screens; awnings; storm doors and windows; trash compactor; fireplace doors, gas logs, inserts and gas log lighters; irrigation fixtures; electric garage door openers and remotes; water heaters; shrubs, plants and trees planted in the ground; all bathroom and other fixtures; and all associated operating equipment.

  9. Other Terms:

    a. The following recurring items will be made current (if applicable) and prorated as of the day prior to Close of Escrow, or date of occupancy if occupancy occurs before Close of Escrow: real estate taxes (including special benefit tax assessments imposed by a CDD), interest, bonds, association fees, insurance, rents and other expenses of Property. Buyer shall have option of taking over existing policies of insurance, if assumable, in which event premiums shall be prorated. Cash at Close of Escrow shall be increased or decreased as may be required by prorations to be made through day prior to Closing. Advance rent and security deposits, if any, will be credited to Buyer. Escrow deposits held by Seller’s mortgagee will be paid to Seller. Taxes shall be prorated based on current year’s tax with due allowance made for maximum allowable discount, homestead and other exemptions. If Close of Escrow occurs on a date when current year’s millage is not fixed but current year’s assessment is available, taxes will be prorated based upon such assessment and prior year’s millage. If current year’s assessment is not available, then taxes will be prorated on prior year’s tax. If there are completed improvements on the Property by January 1st of year of Close of Escrow, which improvements were not in existence on January 1st of prior year, then taxes shall be prorated based upon prior year’s millage and at an equitable assessment to be agreed upon between the parties, failing which, request shall be made to the County Property Appraiser for an informal assessment taking into account available exemptions. A tax proration based on an estimate shall, at either party’s request, be readjusted upon receipt of current year’s tax bill. This paragraph shall survive Close of Escrow.

    b. Brokers do not guarantee the performance of the service providers set forth in this Agreement or otherwise. Buyer and Seller may select any service providers of their own choosing, including title and escrow companies.

    c. The Property is sold in compliance with federal, state and local anti-discrimination laws.

    d. If either Seller or Buyer desires to enter into a like-kind exchange under Section 1031 of the Internal Revenue Code (“Exchange”), the other party shall reasonably cooperate to effectuate the Exchange; provided, however, cooperating party shall incur no liability or expense related to the Exchange, and Close of Escrow shall not be contingent upon, nor extended or delayed by, such Exchange.

    e. Time is of the essence in this Agreement. This Agreement and all other documents and matters referenced herein shall be governed by, and shall be construed according to, the laws of the state in which the Property is situated. The exclusive venue for any disputes relating to or arising from this Agreement shall be the county in which the Property is situated. This Agreement is binding upon the heirs, executors, administrators, successors and assigns of Buyer and Seller and shall survive Close of Escrow. The terms of this Agreement are intended by the parties as a final, complete and exclusive expression of the agreement between the parties with respect to its subject matter and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. This Agreement may not be amended, modified, or changed except by a further written agreement signed by the parties. If any provision of this Agreement is held to be ineffective or invalid, the remaining provisions will nevertheless be given full force and effect. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. The parties agree that for all forms and contracts related to the sale of the Property, written notice sent to them by the other party through the Home Bay application, including by email, shall constitute sufficient notice. Unless as otherwise specified, calendar days shall be used in computing time periods. Days which shall end or occur on a Saturday, Sunday or a national legal holiday as per 5 U.S.C. 6103 shall extend to 5:00 p.m. Eastern Standard Time of the next business day.

  10. Joint Escrow Instructions:

    a. This Agreement, including all counter offers and addenda, shall constitute joint escrow instructions from the parties to Closing Agent. The parties shall execute such additional escrow instructions requested by Closing Agent that are not inconsistent with the provisions of this Agreement. In the event of any alleged failure of performance of either Buyer or Seller, nothing in this paragraph shall require Closing Agent to interpret or enforce this Agreement or to make any determination as to the ownership of, or interest in, any deposited funds.

    b. When Closing Agent has a good faith doubt as to entitlement to any deposited funds, Closing Agent may take such actions permitted by this paragraph. Closing Agent may, at Closing Agent's option, continue to hold the subject matter of the escrow until the parties agree to its disbursement or until a final judgment of a court of competent jurisdiction shall determine the rights of the parties, or Closing Agent may deposit same with the clerk of the circuit court having jurisdiction over the dispute. Upon notifying all parties concerned of such action, all liability on the part of Closing Agent shall fully terminate, except to the extent of accounting for any items previously delivered out of escrow. Any proceeding between Buyer and Seller wherein Closing Agent is made a party because of acting as Closing Agent, or in any proceeding where Closing Agent interpleads the subject matter of the escrow, Closing Agent shall recover reasonable attorney’s fees and costs incurred, to be paid pursuant to court order out of the escrowed funds or equivalent. Closing Agent shall not be liable to any party or person for mis-delivery of any escrowed items, unless such mis-delivery is due to Closing Agent's willful breach of the Agreement or Closing Agent's gross negligence. This paragraph shall survive Close of Escrow or termination of the Agreement.

    c. Brokers are a party to the escrow for the sole purpose of compensation. Buyer and Seller irrevocably assign to Brokers the compensation specified in the Agremeent or in other writings between the parties, and irrevocably instruct Closing Agent to disburse those funds to Brokers at Close Of Escrow or pursuant to any other mutually executed cancellation agreement. Compensation instructions can be amended or revoked only with the written consent of Brokers. Buyer and Seller shall release and hold harmless Closing Agent from any liability resulting from Closing Agent’s payment to Broker(s) of compensation pursuant to this Agreement.

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