assignment of purchase contract and escrow instructions

Assignment Of Purchase Agreement

Jump to section, what is an assignment of purchase agreement.

An assignment of purchase agreement is a contract between an assignor and assignee where the latter transfers certain interests to the former. This type of agreement is most commonly used in real estate to transfer one party's interest buying a property to someone else. The contract includes detailed information about the property, who the parties are, and what the goal of the agreement is. It also lays out specific terms and conditions that govern the relationship between the two parties.

The purpose of the assignment of purchase agreement is to successfully transfer rights from one party to another while ensuring the agreement remains mutually beneficial.

Common Sections in Assignment Of Purchase Agreements

Below is a list of common sections included in Assignment Of Purchase Agreements. These sections are linked to the below sample agreement for you to explore.

Assignment Of Purchase Agreement Sample

Reference : Security Exchange Commission - Edgar Database, EX-10.17 4 dex1017.htm ASSIGNMENT AND PURCHASE AGREEMENT , Viewed October 24, 2022, View Source on SEC .

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Assignment of Purchase Agreement

An assignment of purchase agreement and sale is when a buyer of a new home sells a third party the right to assume the purchase contract. 3 min read updated on February 01, 2023

An assignment of purchase agreement and sale is when a buyer of a new home sells a third party the right to assume the purchase contract. In this situation, the buyer is the assignor, and the third party is the assignee. Under the agreement, the assignee pays a higher price. This agreement must take place in the time between when the assignor agrees to buy the home, but before the contract closes with the builder.

With this period, the assignor never takes the title of the property. Instead, the title is put in the name of the assignee. This is informally known as "flipping a home." The flipping of a home occurs when:

• The original buyer enters into a purchase contract and assigns the contract to the third party before closing ends.
• The original buyer makes a profit from the sale.

If the sale does not close, the seller will lose time, money, and resources.

Advantages and Disadvantages of an Assignment of Contract

There are several advantages of an assignment of contract. With an assignment of contract, you are not actually flipping a home. Instead, you are flipping the contract, which means you don't have to have the financial backing to purchase the property. Not only do you not close on the property, but you will also not have to pay any closing costs or take on any additional expenses.

For wholesale flippers, using the assignment of contract is a way to save thousands of dollars each month. For example, if the closing costs per property are $1,000, and you "flip" 10 properties, that is a $10,000 savings.

Wholesalers only need to put down the purchase contract deposit amount that will be held in escrow with the title company or with an attorney. The lower the deposit, the lower the risk that will be assessed. Deposits may be as low as $10 or $100 and will be easier to lose if there are any delays or issues.

An assignment of purchase agreement allows the assignee to buy into new and desirable neighborhoods that are no longer available through the builder.

The main disadvantage of an assignment of contract is the risk of not finding a buyer. If a third-party buyer is not found, and you are under contract, you are responsible for completing the contract. Additional responsibilities include the responsibility of:

• Existing liens.
• Property taxes.

In addition, if the financing of the assignee cannot be obtained before the closing, this may cause the assignor to be responsible for the closing costs and the purchase of the property. The assignor may also not be able to get his or her deposits returned.

Obtaining the Builder's Consent

For an assignment of a purchase agreement to be valid, the builder and assignor must first have a valid legal contract in place that shows the assignor is obligated to purchase a home or condominium unit from the builder.

The buyer may limit how the property can be sold, including that the property cannot be listed on the MLS (multiple listings service). If it is, it is seen as a competing with the builder. If the assignor puts the property on the MLS, it will be a breach of contract, and the builder will be entitled to damages or rescission of the contract. The buyer will also be able to retain any deposits that have been paid and any other money paid for upgrades and extras.

The assignor must also clearly state the property is an assignment of an agreement of purchase with the builder and not a direct sale from the assignor.

Preparing an Assignment of Purchase Agreement

When preparing the agreement documentation, there are questions that should be asked to determine responsibility. Some of the questions to be asked are:

• Who will be preparing the documents?
• Who will pay the cost to prepare the documents?
• Will the assignment agreement and written consent of the builder be prepared by the builder's attorney? And will they cover the costs?
• Can terms agreed to by the assignor and builder be negotiated by the assignee? If so, who will cover the costs, and how will they be resolved?

A detail that should also be negotiated is the responsibility of paying the commission of the assignment agreement.

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Flipping: contracting to assign or double escrow the resale transaction

Posted by Giang Hoang-Burdette | Apr 2, 2010 | Feature Articles , Real Estate | 2

This article discusses the ethical concerns associated with “flipping” a property and the two ways a speculator can structure the transfer of his ownership rights in a flip.

first tuesday writers are aware, however, that speculators exist and continue to be a factor in the California real estate market. Therefore, speculators and their real estate agents should know how to properly structure their transactions to avoid causing undue stress to sellers, buyers and the real estate market as a whole. In other words: if you must do it, do it right.

Two different methods to contract a flip

An undercapitalized speculator locates a residence he would like to buy with the intent to fix it up and immediately locate a buyer and resell the property. However, the speculator is not financially able himself to buy, rehabilitate and carry the property until closing the resale.

If the speculator can enter into a written purchase agreement to buy the property, he will sell and transfer his right to own the property to:

• a user who will pay cash to acquire the speculator’s rights to ownership — called flipping — and become a substitute buyer ; or
• a group of cash-heavy venture capitalists, formed by the speculator as a limited liability company (LLC) to fund the purchase price and carrying costs of ongoing ownership with the intent to close escrow and later resell the property — called syndication . [See first tuesday’s Forming Real Estate Syndicates book.]

On the resale of the property to a buyer (other than by assignment to his syndicated group), the speculator will either:

• assign his contract right to purchase the real estate to the substitute buyer , then also known as the assignee , by entering into supplemental escrow instructions, and escrow will close in the name of the substitute buyer (as is accomplished in syndication ); or
• transfer his ownership interest using a grant deed by entering into a separate purchase agreement and escrow instructions with his buyer and close concurrent with or after closing the speculator’s purchase escrow with the owner, a process called double escrowing if the speculator avoids putting up more money than his good-faith deposit .

Assignment provision and vesting

Further, when the purchase agreement states the speculator’s purchase rights are assignable, the owner cannot require the original buyer — the speculator — to close escrow and take title in his name instead of in the name of a substitute buyer by assignment.

To put the owner on notice of the speculator’s right to assign his purchase rights to a substitute buyer who will close escrow under the purchase agreement, the vesting provisions in the purchase agreement call for the conveyance of title by the owner to be insured in the name of the buyer or assignee .

Having entered into a purchase agreement with a provision that imposes a duty on the owner to cooperate in an assignment, the speculator then:

• seeks out and locates a substitute buyer;
• negotiates the amount he is to be paid for the sale of his purchase rights; and
• enters into an agreement to sell and assign his right to buy the property under the purchase agreement and escrow instructions he has with the owner.

The resale by assignment

To comply with escrow instructions after the assignment of the speculator’s purchase rights, escrow prepares all closing documents in the name of the substitute buyer. Closing documents include:

• carryback notes and trust deeds;
• closing instructions and statements;
• approvals and assumptions of any existing loans;
• title insurance; and
• clearance of any other items necessary for escrow to close.

A separate resale by grant deed

A speculator flipping a property may not want to disclose to a substitute buyer the purchase price the speculator is paying for the property and thus his earnings on the flip. Also, the owner might refuse (wrongfully) to cooperate and allow escrow to close in the name of the substitute buyer when asked to comply with the speculator’s assignment of his purchase rights. The owner may feel he is entitled to the speculator’s quick profit.

Instead of assigning his purchase rights under the purchase agreement and escrow instructions to a substitute buyer the speculator has located, the speculator can simply resell the real estate, whether or not the speculator has acquired title in his name. In some counties, the resale will be additionally taxed on recording the second grant deed, a tax the assignment avoids. Also, there is the issue of the Franchise Tax Board (FTB) withholding 3% of the price on the resale, which causes speculators to incorporate and report as an “S” corporation to avoid FTB withholding on the resale.

On the speculator’s resale of the property, the speculator and his perspective buyer will enter into an entirely new purchase agreement and set of escrow instructions, separate from the speculator’s contracts with the owner.

A separate escrow will be opened for the resale that will be funded by the resale buyer and any purchase-assist mortgage lender. The escrow company handling the speculator’s purchase is typically used on the resale for convenience and reduced escrow charges, and if a concurrent closing, the transfer of funds.

The speculator’s purchase escrow with the owner and the separate resale escrow opened with the substitute buyer may close concurrently, or the closings may be separated in time. The closing of the resale escrow should be contingent on the close of the speculator’s purchase escrow with the owner. The speculator’s net sales proceeds from his resale escrow will be the source of the funds he will use if he closes concurrently with his purchase escrow with the owner.

Through this legitimate double-escrow process, two grant deeds will be recorded — one from the owner to the speculator who, in turn, will further convey the property by grant deed to the resale buyer in this variety of a flip.

Only one title insurance policy will be issued if the closings are concurrent, and one set of loan assumptions or loan origination documents will be completed — all in the name of the substitute buyer. If the speculator’s purchase escrow closes first, a binder form title policy will need to be purchased at a 10% premium. Under a binder , a policy of title insurance will be issued in the name of the substitute buyer when the resale escrow on the flip is closed.

Editor’s note — Normally, property insured by the Federal Housing Administration (FHA) may not be flipped within 90 days of sale, however, the US Department of Housing and Urban Development (HUD) instituted a temporary moratorium on that anti-flipping rule in an effort to combat the purported illiquidity of real estate owned (REO) properties during the foreclosure crisis. Beginning February 1, 2010, and effective for one year, a property may be flipped by a speculator within the 90-day post-sale period, subject to requirements relating to the sales price, lender specifications and the arms-length status of the transaction. [For more information on the relaxation of the anti-flipping rule for speculators (and their brokers), see HUD’s January 15, 2010 Press Release . ]

Disclosures on a resale

The speculator offering to sell a one-to-four unit residential property must make a full disclosure of the physical, operating and title conditions as well as the natural and environmental hazards affecting the property. The substitute buyer on an assignment of the speculator’s right to buy the property receives copies of the purchase agreement, escrow instructions and all disclosures received by the speculator from the owner.

Agency considerations

When the speculator involved is a real estate licensee acting on behalf of the owner of the property looking to sell (usually acting under a listing or property management agreement), the situation is complicated by the fiduciary duties owed the owner/seller by the speculator.

Consider a broker who, while employed to locate a buyer for the listed property, prepares a purchase agreement naming himself as the buyer and submits it to the seller. The purchase agreement calls for the broker to be paid a fee for acting as the seller’s agent.

Prior to the close of escrow opened for the purchase, the broker locates a substitute buyer who agrees to acquire the broker’s rights to buy the property under the purchase agreement through an assignment and to substitute himself into escrow as the substitute buyer. The substitute buyer pays the broker a transfer fee for the assignment.

The seller agrees to the assignment of the broker’s rights to the substitute buyer after the broker reiterates that the property’s value does not exceed the price set in his purchase agreement with the seller.

At closing, the broker tells the seller he is to receive an assignment fee for the transfer of his right to buy, but does not disclose the dollar amount of the fee. After escrow closes, the seller discovers that, in addition to the fee he paid the broker, the substitute buyer paid the broker 10% of the purchase price for the assignment.

The seller makes a demand on the broker for the assignment fee and the return of the brokerage fee he paid, claiming the broker breached his fiduciary duty owed the seller and did so deceptively since the broker failed to disclose the amount of the benefits he received while acting as the listing agent, and deprived the seller of his ability to sell his property for its highest possible value.

The broker claimed he had no duty to disclose the price paid by the substitute buyer for the assignment since the broker’s status under the purchase agreement as a buyer was that of a principal with an interest in the property he could sell.

Did the broker breach his fiduciary duty owed to the seller as the listing agent (or property manager) by failing to disclose the dollar amount of the benefits he received on his flip of the property to the substitute buyer?

Special rules for EP speculators

When purchasing a residential property from a seller-in-foreclosure , the speculator is further regulated by the equity purchase (EP) laws designed to protect vulnerable sellers.  A seller-in-foreclosure has a two-year right of rescission when speculator misconduct exists under the EP statutes. On an assignment of the speculator’s purchase rights, the seller retains his rescission rights against the substitute buyer since the right to rescind arose under the contract taken over by the substitute buyer.

However, if the speculator conveys the real estate to a third-party buyer flipping it in a separate arms-length resale, the buyer is a bona fide purchaser (BFP) exempt from the seller’s two-year right of rescission under EP law — even if the resale buyer knows the property is in foreclosure.

Keywords: Assignment, flipping, speculators

About The Author

Giang Hoang-Burdette

is a licensed real estate agent and former first tuesday Journal editor. Giang worked in the mortgage industry before joining the first tuesday staff.

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To double-escrow, they first get the seller tangled up in a one-sided “option” agreement that deceptively resembles a real sales agreement (“You agree that you must sell me your house for x, but I can walk away and not buy if I don’t find anybody that I can resell it to”); then they line up the buyer who signs a contract that also resembles a sales agreement but isn’t, since the flipper doesn’t own real estate – he only owns rights under a contractual “option” to buy the property at the lower price – and so the buyer enters into an “obligation to purchase” agreement – not an actual purchase agreement. Therefore what the flipper is really doing is selling an investment contract – the buyer is buying an unlicensed “security” that the flipper illegal sold because he did not register it first with the SEC or with the California Department of Business Oversight.

if I have an investment property in escrow , purchased in my name “and/or assignee” and then receive an offer about $50,000 above my purchase price. Is it better to assign the deal, or flip it in escrow, what is the best way to do that? the other buyer has their own broker who wants a fee, and there is a selelr carry back 2nd TD as well

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Understanding the California Residential Purchase Agreement & Joint Escrow Instructions

Learn how to read and negotiate the terms of the standard California Residential Purchase Agreement when buying or selling real estate.

The transfer of real estate is a legal process with loads of paperwork, often written in legalese.  While the interpretation can seem daunting for those new to the marketplace, the standard California Residential Purchase Agreement is not as complicated as it seems.  With built-in safeguards for both the buyer and seller, the standard California Residential Purchase Agreement is written with consumer protection in mind .

Below we explain each section in detail.  Sections where terms can be edited will be highlighted .  All “ by default ” timelines can be edited in the contract.  Click on the thumbnails below to enlarge the page, or download a full sample copy of the California Residential Purchase Agreement here .

The first page of the CAR California Residential Purchase Agreement is one of the most important.  This page will detail the offer price and type of financing you will bring in for the purchase of the home.

1. A. BUYER(s) NAMES : List the buyer(s) full, legal name(s) that will be used for signing all  associated legal documents and that will be recorded on the title deed upon purchase.

1. B. PROPERTY ADDRESS : Fill in the target property address, including street address, city, county, zip code, and assessor’s parcel number (“APN”  The APN number of a property is public record and your real estate agent will have access to the APN number through the MLS on the property listing).

1. C. OFFER AMOUNT: Spell out the purchase price first in writing and then the dollar amount (ex. “one hundred thousand dollars, $100,000)

1. D. CLOSE OF ESCROW: Here is where you need to estimate the time necessary for the close of escrow.  Your real estate agent or lender can help make this estimation.  Generally speaking, cash transactions can close the fastest, sometimes within 10 business days.  Financed transactions (taking out a loan) will take longer as the lender has a lengthy evaluation and underwriting process.  Buying a house with a loan will usually take at least 45 days, assuming you have a clean credit history and there are no disputed items on your financial record.  If you are financing, consult with your lender on the amount of time they recommend for the escrow process.

1. E. PARTIES: This is a disclosure to inform you that the stated buyer and the stated seller are the only parties in the transaction.  While the buyer and seller may have agent representation, the purchase contract is solely between the buyer and seller.

2. A. AGENCY DISCLOSURE: When you enter into a contract with a licensed California real estate agent, they are required to provide the “Disclosure Regarding Real Estate Agency Relationships” which details information regarding the responsibilities of a seller’s agent, a buyer’s agent, or a dual agency.  Ask your real estate agent to review the information with you in detail so you understand what their role is and how you are or are not protected.

2. B. AGENCY CONFIRMATION: This is where the buyer’s agent and/or seller’s agent will be identified.  Input the name of the company/brokerage, not the name of the individual agent.

2. C. POTENTIALLY COMPETING BUYERS AND SELLERS: This is an acknowledgement that you have received the other necessary agent disclosure, the “Possible Representation of More Than One Buyer or Seller.”  In essence, it states that buyer’s agents and seller’s agents are often working with more than one buyer or seller at a time; you may not be your agent’s only contract.  This means, for example, that a buyer’s agent may show another client the same property.  Both clients may even bid on the same property.  This is not unusual, but speak with your real estate agent to fully understand their responsibility to you.

FINANCE TERMS

In this section, you will detail how you will be paying the stated offer price.  Some parts of this section will not apply to your situation.  Fill in the areas that are relevant to your offer.

3. A. INITIAL DEPOSIT:   This section is required for all purchases.  The initial deposit is your earnest money (EMD).  This can be any amount and usually ranges between $3,000-$10,000 for a midlevel home.  This is not your down payment.  An earnest money deposit is more like a token that you are serious about moving forward with the purchase.  The EMD must be cash on hand that you may deliver via wire transfer, cashier’s check, or personal check.  Your EMD will be held in an escrow account and must be delivered to escrow within the stated time limit, which, by default, is 3 business days after acceptance of the offer.

3. B. INCREASED DEPOSIT:   Sometimes, to “sweeten the deal,” a buyer may opt to increase their deposit after a certain number of days or after a specific event has taken place.  An increased deposit is not required.

3. C. ALL CASH OFFER: If you have all the funds in cash to cover the purchase price along with closing costs, you can select an all cash offer and skip all the financing sections.  You will need to provide verification of funds sufficient to close the transaction.

3. D. FINANCING TERMS: Hopefully you have been pre-approved by a lender so you know what type of loan you are working with and a fairly good estimation of the terms of the loan in question.  In this section, you will need to disclose the type of financing you will be receiving in order to close the transaction (FHA, VA, Conventional, Seller Financing, etc.).

3. E. ADDITIONAL FINANCING TERMS: Use this blank space to include any terms that are unique to your financial situation and not listed on the standard purchase agreement.

3. F. BALANCE OF DOWN PAYMENT: Your initial deposit (EMD) will apply toward the down payment of your loan if you are financing, or toward the purchase price if you are paying in cash.  Calculate how much more cash you need to bring in to either meet the down payment or purchase price and fill in that amount in the space provided.

Example 1:  Ms. Homebuyer is making an offer to buy a home for $100,000 in cash.  She put down a $5,000 earnest money deposit (EMD).  The balance of the purchase price is $95,000.

Example 2:  Mr. Homebuyer making an offer to buy a home for $100,000.  He is financing the transaction with a conventional loan that will require a 10% down payment, which is $10,000.  Mr. Homebuyer put down a $5,000 earnest money deposit (EMD).  The balance of the down payment is $5,000.

3. G. PURCHASE PRICE TOTAL: The amounts you put in for the financing terms should all add up to equal the purchase price indicated in 1.C.  Do the math carefully to make sure there are no discrepancies.

3. H. VERIFICATION OF DOWN PAYMENT AND CLOSING COSTS: When making an offer on a property, it is a good idea to provide verification that you have enough cash in the bank to pay for your stated down payment plus additional closing costs.  This verification is required and by default, a buyer has 3 days  of days after acceptance to provide such verification.  In order to present the strongest offer possible, it is best to include your verification with the presentation of the offer.

3. I. APPRAISAL CONTINGENCY AND REMOVAL: If you are working with a lender, an appraisal is most likely required.  You will want to work with your lender to be sure an appraisal is ordered as quickly as possible because you have a limited window for the appraisal contingency.  By default, a buyer has 17 days to remove the appraisal contingency, but those terms can be adjusted.  Keep in mind, a longer appraisal contingency period may seem less favorable to a seller.  While a shorter appraisal contingency is more favorable for the seller, make sure it is a realistic amount of time for the appraisal to be completed.  In most cases, 17 days is a reasonable amount of time to ensure receipt and review of the appraisal.

3. J. LOAN TERMS

The next few sections are related to borrowers financing the purchase of a property.  If you are paying cash for the transaction, you can skip the next few items.

(1) LOAN APPLICATIONS: If you are financing the purchase, you must be able to prove to the seller that a lender is willing to lend you enough money to cover the amount of purchase price, minus your down payment.  By default, a buyer has 3 days to submit a letter of pre-approval from a lender.  Pre-approval for a home loan takes time.  You are required to provide some financial documentation to verify your income and debt-to-income ration (DTI).  It is highly recommended that you get pre-qualified with a lender before making offers on any property primarily to know the price range of homes you can afford.  Furthermore, most sellers will ask for a pre-approval letter to be delivered with your offer.

(2) LOAN CONTINGENCY: Sometimes, even if a borrower has already been pre-approved with a lender, they may be unable to secure a loan at the price they need.  There are many reasons loans fall through, and the best way to avoid that is to be diligent about tracking your financial profile and to be honest with your lender about your financial situation.  Regardless, the loan contingency is a safeguard in case a borrower is unable to secure a sufficient loan in which case escrow will be cancelled and the earnest money deposit returned.

(3) LOAN CONTINGENCY REMOVAL: By default, a borrower has 21-days  to secure a loan or cancel the agreement.  Your earnest money deposit may be at jeopardy if you are unable to secure a loan after the expiration of the loan contingency period.

(4) NO LOAN CONTINGENCY: Select this option if you are purchasing the property with cash .  It is not recommended to select this option if you are applying for a loan.

(5) LENDER LIMITS ON BUYER CREDITS: Usually lenders have limits on the amount of money a borrower can receive for the transaction.  This includes any source, such as gifts (Money from your mom to help with the down payment, etc.) or seller credits (Money back from seller to help cover closing costs, etc.).  All monies from all sources must be accounted for and disclosed to your lender.

3. K. BUYER STATED FINANCING: This is simply a disclosure that says the seller is trusting that the information the buyer has presented about the type and amount of financing they will qualify for is accurate.  If the buyer is unable to secure the financing, it is of no fault of the seller, and if the buyer is unable to secure financing after the expiration of the loan contingency period, it would be the buyer’s fault, and subject to the terms of cancellation at fault of the buyer according to the contract.

4. SALE OF BUYER’S PROPERTY: You must let the seller know if you are relying on the funds from the sale of another property to finance the purchase property.  If so, an additional form (“COP”) is required and available through your licensed real estate agent.   By default, the agreement is NOT contingent on the sale of any property.

5. A. ADDENDA: These are usually forms that relate to the purchase property, whether it be the type of sale or the property characteristics.  Your licensed real estate agent will know if any addenda are needed and listing agents will specify any unique addenda requirements.

5. B. ADVISORIES: These are standard state advisories that must accompany certain types of sales.  The Buyer’s Inspection Advisory is required for every sale, recommending that the buyer hire a professional home inspection as part of their due diligence.  Other advisories are related to probate sales, short sales, trust sales, bank-owned sales, etc.

6. OTHER TERMS: This is a field where you can list any additional terms that are not covered anywhere else in the contract.  This can include terms like, “subject to interior inspection,” or “one unit to be delivered vacant,” etc.

7. ALLOCATION OF COSTS

The items in this section allocate the costs for standard inspections, fees, city requirements, and any other cost associated with closing escrow.

7. A. INSPECTIONS, REPORTS, AND CERTIFICATES: Indicate whether the buyer or seller will be paying for the cost of inspections, reports, or certificates.  The only report expressly stated on the standard purchase agreement is the natural hazard zone disclosure report (NHD).  This is a legally required document that the seller must provide to the buyer to disclose if the property being sold lies within one or more state or locally mapped hazard zones, such as a fire, flood, or earthquake zone.  This is usually a third-party report that you can buy online; your licensed real estate agent can help you obtain the NHD.  There are additional line items where you can add in any additional reports you may need, such as a wood destroying pest inspection (termite inspection), foundation inspection, etc.

7. B. GOVERNMENT REQUIREMENTS AND RETROFIT: California has specific regulations regarding smoke and carbon dioxide detectors as well as water-heater bracing.  Besides the California sate requirements, sometimes there are local regulations that must be verified in order to close escrow.  Check with your local department of building and safety to see what applies to your area.  Indicate which party will pay for any necessary installation or repair to be in compliance with the law if the units do not already meet regulation.

Smoke Detector

Any smoke alarm installed that is solely battery powered MUST contain a non-removable battery that is rated to last 10 years.   One smoke alarm should be placed on each floor in non-sleeping areas. In addition, one smoke alarm must be installed in each room where sleeping occurs and one smoke alarm should be located in each hallway that leads directly to sleeping rooms.

Learn more about smoke alarm requirements

CARBON MONOXIDE DETECTOR

CO devices should be installed outside each sleeping area of the home including the basement. The manufacturer’s installation instruction should also be followed.

Learn more about carbon monoxide detector requirements

Water Heater

New and replacement water heaters are required by law to be anchored or strapped to resist falling during earthquakes. Home sellers must certify to buyers that water heaters are braced.

For more information see the Homeowner's Guide to Earthquake Safety .

7. C. ESCROW AND TITLE

The escrow and title section will name the title and escrow company that will be used in the transaction and who will pay for any associated fees.

(1) ESCROW FEE AND ESCROW HOLDER: Typically in a real estate transaction, a neutral third party, called the “escrow holder,” is the agent and depositary holding possession of the money, written instruments, documents, etc. until all the terms of the contract are met.  An escrow holder must be a licensed escrow agent, and in some cases may be a bank, title insurance company, trust company, attorney, or real estate broker.  An escrow holder/company will charge a fee for their services.  In many cases, the buyer and seller will each pay their own escrow fees, but you can indicate in the contract which party will pay the escrow fees.  The buyer or seller may elect the escrow holder, depending on the terms of the contract.  Ask your licensed real estate agent what is customary in your area and to provide you with a recommendation for an escrow holder.

(2) TITLE INSURANCE: It is recommended that homeowners obtain a title insurance policy when purchasing a new home in order to protect their financial investment against losses that would occur if the title to the property was not clear of defects (ex. Liens or encumbrances that were unknown when the policy title was issued).  The terms of the policy define what risks are covered and what risks are excluded from coverage. The buyer will pay for any title insurance policy issued to the lender, which will be one of the fees for securing a loan.  Title insurance to cover the buyer’s down payment or cash purchase can be paid either by the buyer or seller, and the buyer can indicate a title insurance company or may leave it for the seller to decide.  Ask your licensed real estate agent if you need a referral for a title insurance company.

7. D. OTHER COSTS:   Other fees associated with the transfer of real property may include county and city transfer taxes, home owner’s association (HOA) fees, private transfer fees, etc.  Indicate which party will pay for such fees.

(10)  HOME WARRANTY: You may wish to purchase a home warranty plan when purchasing a home.  A home warranty plan is not your homeowner’s insurance policy, but a separate contract covering selected repairs and replacements on systems in your home (ex. appliances), usually for the period of one year.  Make sure you review your contract and coverage to understand what is covered and what is not.  A buyer may specify the home warranty company and indicate which party will pay for the plan.

8. ITEMS INCLUDED OR EXCLUDED FROM SALE:

By default , all existing fixtures and fittings that are attached to the property are part of the sale.  These are the non-personal items that are “permanently” installed on the property, such as wiring, plumbing, installed fixtures (lights, ceiling fans, window coverings, air conditioners, etc.).  Appliances can be included or excluded from the sale.  These terms are all negotiable.  For instance, a seller may wish to take all the chandeliers when they move out, or a buyer may request to keep the patio furniture that compliments the yard space.

9. CLOSING AND POSSESSION

This section defines what happens at closing: when the buyer will legally take possession, who will occupy the property at the close of escrow, and the terms of any tenant residency.

9. A. OCCUPATION: The buyer must indicate whether or not they intend to live in the property as their primary residence.   By default, the contract states the buyer does intend to occupy the property.   Whether or not you purchase the property as your primary residence can have consequences on your loan and tax situation.

9. C. & D.  POSSESSION: The terms of possession can be negotiated between the buyer and seller and must be indicated in the contract.  Sometimes a property is sold with the existing tenant, or perhaps the tenant is scheduled to move out by a certain date.  Sometimes a seller will request to remain in possession of the property for a few days or weeks after escrow in order to move out.  Possession, particularly at the close of escrow and beyond, should be clearly defined in this section.  Additional forms will be necessary if a tenant or seller will remain in possession after the close of escrow.

9. E. & F. CLOSE OF ESCROW: This language states that the seller will assign any warranties on the property to the buyer, and deliver all keys, passwords, codes, etc., associated with the property at the close of escrow.

10. STATUTORY DISCLOSURES: California has a number of disclosures that are required with the transfer of real property.  These are disclosures that the seller must provide to the buyer as part of the buyer’s due diligence.  These are standard, general disclosures mandated by the state to give the owner information about lead paint, natural hazards, special tax assessment areas, property disclosures, sex offenders, and community or planned developments.

11. CONDITION OF THE PROPERTY: The seller must disclose to the buyer any known material facts and defects concerning the property within the last 5 years.  The buyer may request repairs or credits in writing, but unless otherwise agreed to in writing, the property is sold in its “as-is” condition.  It is strongly recommended that the buyer hire a licensed home inspector to inspect all visible areas of the property to determine the condition of the property.

12. BUYERS INSPECTION: This section discusses the rights and responsibilities of the buyer and seller for the buyer’s inspection of the property.  The seller agrees to make the property available to the buyer and the professionals the buyer hires to perform property inspections.  The seller must have all utilities on for inspection and through the date of possession.  The buyer agrees to hire any inspector at the buyer’s expense unless otherwise agreed to in writing.  The buyer takes responsibility for any party entering the property on their behalf and will repair any damage resulting from the buyer’s investigation.

13. TITLE AND VESTING: This section provides some information of what the buyer can expect regarding the title or deed of the property.  The seller has a duty to disclose to the buyer any known matter that affects the title of the property, whether the matter has been officially recorded on public record or not, and must provide a completed Statement of Information within 7 days after acceptance .  The buyer will receive a preliminary title report from the title company which will show recorded liens and encumbrances on the property.  The preliminary report may not show all items affecting the title.  The buyer will receive a CLTA/ALTA “Homeowner’s Policy of Title Insurance” (if applicable), to protect against any defects in the title.

14. TIME PERIODS; REMOVAL OF CONTINGENCIES; CANCELLATION OF RIGHTS: The buyer has a period of time in which to complete all necessary inspections and due diligence on the property.  The number of days can be adjusted in the construction of the contract, but time periods may only be altered or extended by mutual agreement in writing.

14. A. SELLER DISCLOSURES: By default, the seller has 7 days after the date of acceptance to deliver to the buyer any required disclosures, reports and information about the property.  These include the addenda and advisories indicated in sections 5 and 6, the inspections and natural hazard zone disclosure report indicated in section 7, all the statutory disclosures indicated in section 10, the transfer disclosure statement (TDS), seller property questionnaire (SPQ), and any other necessary disclosures.

14. B. BUYER INSPECTION CONTINGENCY: By default, the buyer has 17 days after the date of acceptance to complete any inspections they wish to perform on the property and review all the disclosures and documentation provided by the seller. If the buyer does not receive the necessary documentation from the seller within the contingency period, by default, the buyer will have an additional 5 days to review such materials.   The buyer must make any requests for repairs or concessions before the expiration of the contingency period.  The seller is not obligated to accept any request for repairs.  By the end of the contingency period, the buyer must either deliver a contingency removal in writing or cancel the purchase agreement .  Once the buyer has removed contingencies, the seller cannot cancel the agreement without penalty.

14. C. REMOVAL OF CONTINGENCIES WITH OFFER: Although it is not recommended, a buyer may choose to remove the contingencies without an inspection period .  This is risky if you don’t have a good understanding of the property as you may encounter unknown problems or defects.

14. D. SELLER RIGHT TO CANCEL: The seller must deliver a Notice To Buyer To Perform (NBP) before cancelling the agreement for any reason.  If the buyer does not remove contingencies in writing or deliver all of the required funds and documents into escrow within the contingency period, the seller may cancel the agreement and return the buyer’s earnest money deposit (EMD) minus any expenses incurred by the buyer.

14. E. NOTICE TO BUYER OR SELLER TO PERFORM: The Notice To Buyer To Perform (NBP) or the Notice to Seller to Perform (NSP) can be delivered no earlier the 2 days prior to the expiration of the stated contingency period.  By default, the offending party has 2 days to take applicable action.

14. F. EFFECT OF BUYER’S REMOVAL OF CONTINGENCIES: The buyer must be aware that once the contingencies have been removed in writing, the terms of the agreement are set and any cancellation by the buyer thereafter may be at the buyer’s expense.

14. G. CLOSE OF ESCROW: After contingencies have been removed, hopefully it will be smooth sailing until closing.  If, for some reason, the close of escrow is in jeopardy, the buyer or seller must deliver a Demand To Close Escrow (DCE) in writing before the cancellation of the agreement.  The DCE may be delivered no earlier than 3 days prior to the close of escrow date stated in the purchase contract.  By default, the DCE recipient will have 3 days after receipt to take applicable action and close escrow.

14. H. EFFECT OF CANCELLATION ON DEPOSITS: If the buyer or seller cancels the agreement for any reason within their rights in accordance with terms of the contract, everyone gets their money back minus any fees they might have incurred.  If you went far enough into the escrow process, you probably incurred fees for inspections, appraisal, and maybe title and escrow fees.  Both parties must agree to the cancellation and return of deposit in writing.  If the parties cannot reach an agreement, you can demand the escrow holder for your money back in writing.  The escrow holder will deliver the notice of demand to the other party and if they don’t object to the demand within 10 days , the escrow holder will return your deposit minus any fees.  The escrow holder is not responsible for any dispute and you could be charged up to $1,000 in a civil penalty if you do not comply with cancellation within the terms of the agreement.

15. FINAL VERIFICATION OF CONDITION: The buyer has the right to do a final walk-through of the property to verify that the condition of the property has not changed.  By default, the buyer can make this verification within 5 days of the close of escrow .  The final verification is not a contingency, but the seller must prove the condition has not changed and any necessary repairs have been completed.

16. REPAIRS: If the seller has agreed to any repairs, they must be completed before the final verification of condition unless otherwise specified in writing.  The seller is able to make repairs his/herself, or hire someone to make the repairs, as long as the repairs meet or exceed local building code.  The repairs must be performed in a “good, skillful manner” with quality materials.  The seller must provide to the buyer a list of the repairs performed and any receipts related to the repairs prior to the final verification of condition.

17. PRORATIONS OF PROPERTY TAXES AND OTHER ITEMS: The purpose of a proration in the sale of real property is to fairly divide property expenses, such as taxes and association dues, between the buyer and seller so that each party is paying only for those days in which they owned the property.  Property taxes, assessments, interest, rent, HOA fees, and any other assessments will be paid current and prorated (based on a 30-day month) between the buyer and seller at the close of escrow.  The buyer will also be subject to a reassessment upon change of ownership and may receive a supplemental tax bill.

18. A. BROKERS COMPENSATION: A listing agent and a buying agent will have a different type of contract with their client can create different terms for payment in both the event of the close of escrow as well as the cancellation of escrow.  It is important to understand the terms of the contract with your agent and when and how they will be paid for their services.  Generally speaking, a seller will contract a commission with a listing agent to be a percentage of the final purchase price.  This commission is usually divided between the listing agent (seller’s agent) and the buyer’s agent at the close of escrow.

18. B. BROKER’S SCOPE OF DUTY: Your licensed California real estate agent is a professional resource to help guide you through the legal process of buying or selling a property.  That being said, the final decision is always in your hands.  Your agent cannot be held responsible for the claims of any other parties relating to the property.

19. REPRESENTATIVE CAPACITY: If you are signing your name to the purchase agreement on behalf of another person or entity, you must deliver a Representative Capacity Signature Disclosure (RCSD) and any other associated documentation into escrow within 3 days after acceptance to prove that you are the lawful signee.

20. JOINT ESCROW INSTRUCTIONS TO ESCROW HOLDER: The standard California residential purchase agreement also doubles as escrow instructions to the escrow holder.  This section details what the escrow holder is responsible for.  By default, both parties have 3 days to deliver a copy of the contract and any signed counter offers or addenda to the escrow holder, although escrow is usually opened only after the signed contract, counter(s), and addenda have been delivered into escrow.  The escrow holder will notify the seller and the seller’s agent upon receipt of the earnest money deposit (EMD) from the buyer, and will provide the seller’s Statement of Information (SI) to the title company to perform the title search.  The buyer and seller also allow the escrow holder to distribute the agreed upon compensation to any brokers involved in the transaction.

21. REMEDIES FOR BUYER BREACH OF CONTRACT:  If the buyer must cancel the agreement outside the terms of the contract (at the fault of the buyer), the seller has the right to retain the buyer’s earnest money deposit.  If the property is less than 4 units and the buyer intended to occupy the property, the seller cannot retain more than 3% of the purchase price .  Any increased deposit will require a separate liquidated damages provision.

22. DISPUTE RESOLUTION: The dispute resolution is an attempt to re-route potential litigants through a process designed to resolve disputes more quickly and less expensively than fighting it out in court.  Mediation is the first phase between disputing parties.  Mediation is an informal form of dispute resolution overseen by a neutral third person, called the mediator.  The mediator is not empowered to impose decisions on the parties; instead the mediator facilitates discussions and negotiation between the parties with the goal of assisting them in reaching a mutually acceptable settlement of their dispute.  If the parties cannot resolve their dispute through mediation, they may opt-in for arbitration.  Arbitration is similar to litigation where parties rely on a judge or jury to make and impose a binding decision; however, arbitration is usually more private and not conducted under the formal rules and procedures of the court.  Mediation and Arbitration will not apply to foreclosure, unlawful detainer action, or any matter within the jurisdiction of a probate, small claims, or bankruptcy court.

23. SELECTION OF SERVICE PROVIDERS: Buyers and sellers are free to choose all service providers with relation to the transaction.  The buyer’s and seller’s agents may offer recommendations for service providers, but they are not to be held liable for their work.

24. MULTIPLE LISTING SERVICE (MLS): If applicable under the listing contract, the listing agent is able to market the sale of the property on the multiple listing service (MLS) and track the status of the sale.

25. ATTORNEY FEES: If litigation or arbitration occurs between the parties, the prevailing party will receive compensation to cover attorney’s fees.

26. ASSIGNMENT: Assignment is usually referring to what real estate investors call “wholesaling,” but can occur under other circumstances as well.  An assignment is when a buyer enters into a contract with a seller, but then assigns the contract to another buyer instead, often at a profit to the original buyer.  When using the standard California residential purchase agreement, a buyer would have to obtain permission in writing from the seller in order to assign the property to another party.  Even if both parties agree to the assignment, the original buyer is still responsible for the terms of the agreement unless otherwise agreed to in writing.

27. EQUAL HOUSING OPPORTUNITY: California has strict laws against discrimination.  The Federal Fair Housing act, known as Title VIII of the Civil Rights act of 1968, prohibits discrimination in the sale, rental, or financing of housing units based on race, color, religion, sex, or national origin.  The Fair Housing Amendments Act that became effective in 1989 amended Title VIII to broaden the scope of prohibited discrimination to include disability and familial status.  California championed the Unruh Civil Rights Act in 1959 to provide protection from discrimination by all business establishments in California, including housing and public accommodations, because of age, ancestry, color, disability, national origin, race, religion, sex, or sexual orientation.  The Fair Employment and Housing Act prohibits discrimination in all aspects of housing because of familial status.  Familial status is defined as having one or more individuals under 18 years of age who reside with a parent or with another person with care and legal custody of that individual.

28. TERMS AND CONDITIONS OF OFFER: This is an additional disclosure underscoring that, upon acceptance, both parties must comply with the terms as outlined in the contract, including any counter offers and/or addenda.  The seller can continue to market the property until a final agreement has been reached.  The parties understand the terms of cancelling with out penalty, and cancellation outside of these terms may lead to penalty and/or payment of broker’s compensation.

29. TIME OF ESSENCE  ENTIRE CONTRACT; CHANGES: The phrase, “time is money,” is certainly relevant in the world of real estate.  This section states that both buyer and seller will make an effort to fulfill the terms of the contract in an expedient manner, that the stated terms of the contract are final, that any disputes will be resolved in accordance with California law, and any changes, extensions, modifications, amendments, or alterations must be in writing and signed by both parties.

30. DEFINITIONS: This section defines some of the common terminology that is used throughout the contract.  Review the terms and definitions to have a better understanding of their relevance and impact on the contract.

31. EXPIRATION OF OFFER: If you need a quick response from the seller, you can designate an expiration date for your offer.  This is not required.  You must also indicate if one or more parties is signing the contract on behalf of another person or entity.

If you have made it to page 10, congratulations!  You are on your way to opening escrow!  Page 10 will include indications for counter offers and signatures of final acceptance.

32. ACCEPTANCE OF OFFER: The seller may elect to counter-offer before acceptance, which will be indicated in this section.  The seller will also verify that s/he is the rightful owner of the property and has legal capacity to transfer said property.  Both the seller’s agent and the buyer’s agent information is listed again for transparency.  Presentation of the offer must be documented by the seller’s agent, and the seller must initial in the section, “Rejection of Offer,” to officially reject an offer.  Once the seller signs the acceptance, the contract is resubmitted to the buyer who will sign again as acknowledgement.  The fully signed, executable contract will be handed over to the escrow agent who will also acknowledge receipt on page 10.

Congratulations on successfully navigation the California Residential Purchase Agreement and Joint Escrow Instructions!

• April 6, 2016

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0 Responses

This is some good information, also interesting, thanks for sharing.

Sounds kind of complicated, but I guess it is just goes to show you how important it is to really think about the whole picture and make sure that you are understanding every step of the process.

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