A contract to purchase real estate includes a sale price, mortgage to be obtained (more often than not) and a closing date. However, there is more to a contract to purchase than these details, and that includes the content language in the contract document. The form of the real estate contract prepared by a REALTOR® or real estate licensee can be different from one real estate company to another, from county to county and from state to state. I am providing the Real Estate Contract from the New Jersey Association of REALTORS® for review purposes.

While price and terms are important, the most overlooked aspect, and perhaps a very important consideration for the seller, are the conditions in the real estate contract offer. All real estate contracts have conditions. A condition in a contract offer can be more easily explained as a subject to event.

The most common condition is that the contract is subject to the buyer obtaining mortgage approval and a written mortgage commitment within a certain time frame in the amount required to purchase the home.

Another very common condition is that the buyer performs a termite inspection, home inspection and perhaps a radon inspection within a certain time frame. These type inspections

are so common that they are pre-printed and included in the real estate contract as shown above. Other important inspection clauses that are also found in real estate contracts are the lead based paint inspection, underground oil tank, well water, septic tank and others which may be pertinent to the location of the property.

As previously mentioned, these type conditions are found in most all real estate contracts. What is important and needs to be reviewed is that as a condition, these subject to clauses can be a concern to a seller. The concern is not that a mortgage needs to be obtained or that a home inspection needs to be done, but it is a question of in what time frames will these be completed by the buyer.

In most circumstances, the seller has agreed to take their home off the market during the time frame in which the buyer needs to obtain mortgage approval and conduct their inspections. It is that time frame, if too long, which could be questioned by the seller during a contract presentation.

Time frames vary in obtaining mortgage approval and in conducting inspections. It is important that a buyer understands the process and time frame in submitting a formal mortgage application and the time frame in conducting the required inspections and obtaining the written reports. A diligent REALTOR® or Buyer Agent can provide valuable assistance and guidance in suggesting appropriate time frames. If the dates are too long, they may have a negative response from the seller in contract negotiations. If the dates are too short, complications could arise, such as waiver of inspections or perhaps even voiding of the contract of sale. The sooner the buyer can complete the conditions in the contract, the more comfortable the seller will be in knowing that there home will be under contract with all contingencies being satisfied.

There are other subject to contingencies that can be more of a concern to a home seller, such as subject to the sale of the buyer’s present home, especially if it is not yet on the market for sale or not under contract. While it is understandable that a home buyer needs the equity from their home sale in order to purchase another home, many sellers may not be willing take their home off the market and wait for the buyer to sell their current home.

A buyer with a home sale contingency is a much weaker buyer than a buyer without a home sale contingency. However, a buyer who has a signed contract on the sale of their home would be in a much better negotiating position than one without a sales contract. It is important that the REALTOR® or Buyer Agent is completely informed and aware of all circumstances related to the buyer’s financial needs in order to provide professional guidance and assistance.

When submitting a contract offer, so much is dependent on the seller and what time frame they have in selling. Some sellers are extremely flexible in when they would like to close, others are buying another home and need a specific date and others just may need a fast closing due to relocation or otherwise. The seller’s situation and home sale needs will be the factor in whether a buyer’s home sale contingency is something that may be acceptable or something which is completely unacceptable.

While price is an important aspect in contract presentations and negotiation, the conditions in the contract, such as mortgage terms, inspection time frames and other contingencies, are the most overlooked details by buyers in making a contract offer. In fact, it is quite common that the conditions in a contract offer are the reason the offer is not accepted and not the price.

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Would a more substantial initial deposit, say $1,000.00, make a stronger statement? How about $5,000 as an initial deposit, or even more? Wouldn’t a larger initial deposit check make a stronger impression with a seller in making a decision to accept a contract offer or in contract negotiations?

The Binder is generally not deposited by the Real Estate Broker until there is offer and acceptance, a signed contract of sale. However, there are State Real Estate Licensing Laws which regulate how long a Real Estate Broker can hold a deposit check without depositing it into the Company’s Trust Account. In cases where contract negotiations are prolonged, perhaps beyond five business days, most Real Estate Brokers will either deposit the check into their Trust Account during contract negotiations, or ask the buyer to write a new check as contract negotiations continue.

If the contract offer is not accepted, the Binder is returned to the buyer. If the contract is accepted and signed by the owner, the Binder will be deposited in the Broker’s Trust Account and will be applied to the buyer’s down payment and the purchase price.

Earnest Money Deposit

Commonly referred to as the second deposit, this is the additional upfront deposit made in the purchase of real estate and is also part of the buyer’s total down payment. The earnest money deposit could be 10% of the purchase price depending on the real estate market the home is being purchased in, the price range or the total amount of the down payment being used by the buyer, whether the home is in Iselin, New Jersey, Colonia or Edison, in Middlesex County or in any other state.

It is quite common in many real estate markets that homes are purchased where the total down payment is less than 10% of the purchase price. In these type real estate transactions, the earnest money deposit will generally be some portion of the total down payment, or perhaps the entire amount of the down payment in a transaction where the buyer has a total down total payment of 3.5 % to purchase a home. The amount of earnest money deposit is something that may eventually be determined during contract negotiations.

The earnest money deposit is generally paid within a certain time frame or after completion of Attorney Review. It is generally paid to the Selling Broker, unless local real estate practices provide otherwise, or there is a change made to the contract of sale during the Attorney Review process where the Seller’s Attorney requests to hold all deposit monies in their Trust Account.

There are times when a contract of sale is terminated after Attorney Review, such as home inspection problems, mortgage denial and others. In those situations where a contract to purchase is cancelled in accordance with the terms of the contract, all deposit monies previously paid by the buyer are refunded.

Many buyers, and buyer agents, under estimate the importance of these two aspects of contract preparation, and the benefits they can provide in contract negotiation.

The Initial Deposit and Earnest Deposit can be the difference in whether a contract offer gets accepted and signed by the seller, especially in multi-contract presentations.

Mortgage Considerations

A contract to purchase real estate will include a mortgage contingency clause which provides a time period for the buyer to apply for a mortgage of a specific amount and obtain mortgage approval in order to complete the purchase of a home. This is commonly referred to as the “mortgage contingency clause” in real estate contracts. The time frame for mortgage approval varies from buyer to buyer, and is determined by the type of mortgage being obtained (Conventional, FHA, and VA) and how complete the mortgage pre-approval process was. A buyer’s Real Estate Agent or Mortgage Representative can help in providing more information about the time frame required in processing the formal mortgage application and obtaining the written mortgage loan commitment.

It is recommended that a buyer reviews their Mortgage Pre-Approval when submitting a contract offer, and provide a copy to their Buyer’s Agent. Review is necessary in order to verify that the mortgage amount in the contract offer is the amount in the Mortgage Pre-Approval, or less.

All too often buyers begin their home search in one price range and later find that they need to increase their price range, and increase the mortgage amount, to find a home they like. Obtaining an updated and revised Mortgage Pre-Approval to reflect the mortgage amount in the contract offer is highly recommended.

Mortgage Interest Rates and Mortgage Rate Lock-Ins

Another important consideration is mortgage interest rates. Mortgage interest rates may fluctuate from day to day and mortgage rate lock-in may vary from one mortgage lender to another. Buyers should obtain a current interest rate quote when making a contract offer as the current mortgage interest rate may be different from the quoted interest rate when the Mortgage Pre-Approval was issued.

The interest rate affects mortgage payments, mortgage qualifying and price range.

Closing Date

A closing date is included in the contract offer. This date may be important to the seller in contract negotiations as it relates to their time frame in moving. It is also a consideration for the buyer with regard to their time frame in moving and perhaps with a mortgage interest rate lock in.

Mortgage lenders have various interest rate lock-in policies. Consult with the Mortgage Representative to obtain more information on interest rate lock-in policies and length of interest rate lock in period.

A contract offer to purchase real estate includes sales price, mortgage to be obtained and down payment.

Down Payment

The buyer’s down payment is somewhat fixed. It is generally the amount of money a buyer has saved, or has available, for the purchase of a home. However, there are minimum down payment requirements depending on the type of mortgage to be obtained.

When applying for a mortgage loan, the lender does verify the buyer’s assets. Commonly referred to as deposit verification, this occurs during the mortgage application process to insure that the buyer has the funds for the down payment as well as additional monies for closing cost expenses.

In making a contract offer, it is highly recommended that a buyer be aware of the various costs involved with the purchase of a home and obtain a reliable estimate of closing costs either from their Buyer’s Agent, Mortgage Lender or Attorney. Some of the costs related to closing title are directly related to the home being purchased, others are fees paid for services provided and then there are the costs related to obtaining the mortgage.

It is quite common for buyers to get assistance for the down payment, or closing costs, from family members. The mortgage lender will require a “gift letter” from the donor, and will also verify that these monies are available. While it is great that a family member says they will help in the home purchase, it is very important that a buyer in this situation obtains a commitment for an exact amount they will be given and explains the verification process in advance to the donor in order to avoid any complications later. A mortgage lender can provide specific details.

There are times when gift money is provided in advance of the home purchase and mortgage application. It is important that the buyer creates a paper trail with a copy of the check received, and the deposit slip depositing the money in their bank account. During the mortgage application process, the lender will ask for an explanation on any recent large deposits.

Mortgage Payment

The mortgage amount, and monthly mortgage payment, is determined by the buyer’s income qualifications. There are buyers who choose to maximize the amount of the mortgage as it relates to income qualifications, while there are other buyers who choose to mortgage less than their income warrants in order keep the monthly mortgage payment at a more affordable amount. That is all about personal choice.

When applying for a mortgage loan, the lender does verify the buyer’s income, requires copies of current pay stubs and prior income tax returns. Commonly referred to as income verification, this occurs during the mortgage application process to insure that the buyer has sufficient income to qualify for the mortgage loan requested.

A monthly mortgage payment includes principal, interest, real estate taxes and home insurance, commonly referred to as PITI, and is what is estimated in the pre-qualification process. During the mortgage pre-approval process, mortgage lenders calculate mortgage qualifications based on the current mortgage interest rate, estimated real estate taxes and estimated homeowners insurance. However, mortgage pre-approval for a specific mortgage amount is only an estimate.

There are situations where the pre-approved mortgage amount and price range is beyond affordability for a buyer. This can occur if the mortgage interest rate increases during the home searching process, or during the mortgage application process and the interest rate was not locked in. Likewise, if the home to be purchased has higher real estate taxes than what was estimated in the pre-approval process, the monthly mortgage payment will be higher and may be beyond affordability.

It is highly recommended that a buyer knows what the monthly mortgage payment will be based on their contract offer and match that payment to their mortgage pre-approval.

So what is the right price to start with?

That depends on a number of things, such as the risk to losing the home to another buyer, how close to market value the seller’s asking price is and what is the maximum price willing to be paid for the home. As mentioned in the previous post on this topic, there is no cardinal rule that there must be some fixed amount that a seller will negotiate from their asking price. Even though the current market in 2009 is considered a buyer’s market, whether the home search is in Iselin, New Jersey, Colonia, Woodbridge Township, Middlesex County or any other state, there are many properties on the market for sale where the listing price is at, or very near market value, and where price negotiation will not be as great as other properties on the market that are priced well above market value.

In fact, don’t be surprised to find that there are multiple offers being submitted and negotiated. This does occur, more often than most buyers imagine, and it happens when a seller prices their home to sell and sets a very attractive list price to attract buyers and sell fast.

When negotiating a real estate purchase offer, the seller wants to sell at the highest price and the buyer wants to buy at the lowest price! The reality is that a home will sell for what is worth, whether a seller is looking to get more or a buyer wants to pay less. Contract negotiation is all about getting agreement.

Often overlooked by home buyers at this point in the home buying process is the experience and value of their buyer’s agent in the contract negotiating process. In preparing to make a contract offer, a buyer needs to obtain as much information as possible, and much of that information will be provided by their buyer agent.

This is the point in time when buyers need to have trust in their agent when asking for recommendations and guidance. The truth of the matter is that this is the point in time when the buyer must know and believe that their agent’s concerns are for them, and not for themselves!

An experienced buyer’s agent should prepare, provide and review a market analysis of the home and provide the history of the listing with their client when preparing a contract offer. In addition, a buyer should also a obtain a sellers disclosure if one is available and obtain additional background information about the home, such as the sellers desired closing time frame, if any offers were previously submitted or if a contract offer is currently being negotiated. This is information buyers should have when preparing to make a contract offer. Information like this is invaluable when deciding what price to offer and how to negotiate when submitting a contract offer.

So how does a buyer start negotiating to purchase a home? That depends on the home. There are homes on the market for sale that are simply over priced, some slightly over priced, and then there are those listings that are priced to sell. There are home sellers who are pricing their home at three year ago price levels and will sell only if they get there price, there are sellers who must sell within a certain time frame and there are sellers who just have to sell.

In contract negotiations, one size does not fit all.

While there are many homes on the market, only one buyer gets to own the home in contract negotiations. A home buyer needs to decide how much they want a specific home and at what price!

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