Details of Purchase Agreements in California

A written purchase agreement is the foundation of a real estate transaction. Oral promises are not legally enforceable when it comes to the sale of real estate. Therefore, you need to enter into a written contract, which starts with your purchase agreement. This proposal not only specifies price, but also all the terms and conditions of the purchase. For example, if the seller offered to buy down the interest rate on your loan, make sure that's included in your written offer and part of the final completed purchase agreement, or you won't have grounds for enforcing it later.

REALTORS® have standard purchase agreements produced by the California Association of Realtors and will help you put together a written, legally binding offer that reflects the price as well as terms and conditions that are right for you. Your REALTOR® will guide you through the offer, counteroffer, negotiating and closing processes. In many states certain disclosure laws must be complied with by the seller, and the REALTOR® will ensure that this takes place.

If you are not working with a real estate agent, keep in mind that you must draw up a purchase offer or contract that conforms to state and local laws and that incorporates all of the key items. State laws vary, and certain provisions may be required in your area.

After the offer is drawn up and signed, it is usually presented to the seller by your real estate agent, by the seller's real estate agent, if that's a different agent, or often by the two together. In California, sales contracts are not drawn up by the parties' lawyers.

What is in an Offer?

The purchase offer you submit, if accepted as it stands, will become a binding sales contract (known as a purchase agreement). So it's important that the purchase offer contains all the items that will serve as a "blueprint for the final sale." The purchase offer includes items such as:

  • address and the legal description of the property
  • sale price
  • terms: for example, all cash or subject to you obtaining a mortgage for a given amount
  • seller's promise to provide clear title (ownership)
  • target date for closing (the actual sale)
  • amount of earnest money deposit accompanying the offer, whether it's a check, cash or promissory note, and how it's to be returned to you if the offer is rejected - or kept as damages if you later back out for no good reason
  • method by which real estate taxes, rents, fuel, water bills and utilities payments are to be adjusted (prorated) between buyer and seller
  • provisions about who will pay for title insurance, survey, termite inspections, etc.
  • type of deed to be given
  • a provision that the buyer may make a final walkthrough inspection of the property a few days before the closing
  • a time limit (preferably short) after which the offer will expire
  • contingencies, which are an extremely important matter and that are discussed in detail below

Contingencies

If your offer says "this offer is contingent upon (or subject to) a certain event," you're saying that you will only go through with the purchase if that event occurs. Here are two common contingencies contained in a purchase offer:

The buyer obtaining specific financing from a lending institution: If the loan can't be found, the buyer won't be bound by the contract.

The buyer selling their current residence. Again, make sure that all the details are explicitly stated in the written contract.

Negotiating Tips

You're in a strong bargaining position, that is, you look particularly welcome to a seller, if:

  • you're an all-cash buyer
  • you're already have a pre-approved mortgage and you don't have a present house that has to be sold before you can afford to buy
  • you’re able to close and take possession at a time that is especially convenient for the seller

In these circumstances, you may be able to negotiate some additional discount from the listed price.

It's very helpful to find out why the house is being sold and whether the seller is under pressure. Keep the following considerations in mind:

  • every month a vacant house remains unsold represents considerable extra expense for the seller
  • if the sellers are divorcing, they may want to sell quickly
  • estate sales often yield a bargain in return for a prompt deal