A Well Written Term Matters

Scott Baker & Associates And Your Calgary HomeI have seen many contracts (unfortunately) that have the appearance of having been written on a cocktail napkin. The process of writing a purchase contract should be thorough and clear. It also should follow the ‘kiss’ philosophy. An unclear term or condition can put both the client and the Associate in a bad position. A good example of this is in an article regarding an ‘Approval by Seller’s lawyer’ clause.  This is one that I have both seen and used in my own negotiations on behalf of clients. Rather than simply say ‘approval of lawyer’, the condition should detail what they are approving. They could be approving the terms and conditions of the offer, for instance. Stipulating that they are not approving the price or financial aspects of the offer will help the other party of the contract to have some assurance that this is simply a review of the elements, and not an opinion of value. A condition will always have a time line in which it must be satisfied. In the case of a term, it should also be clear as to what is being agreed to, and the recourse is if it is not satisfied by the party charged with ensuring the term is carried out.

A good example might be if there was an old washer and dryer in the back yard that the buyer wanted removed by closing. The term needs to state that it is to be removed by the seller, at their expense. If it is not removed, there will be a $500 holdback by the lawyer until it is removed. If it isn’t removed by a date agreed to, the money goes to the buyer, presumably to compensate them for the cost and inconvenience of removing it themselves. Again, I have seen similar clauses in contracts where the person writing it simply puts in ‘seller to remove washer and dryer from yard’. That leaves the term open to interpretation, which is a can of worms. If you want the carpets cleaned prior to possession, by who? Professionally done, or can the seller go rent one and do it themselves? Does the seller have to supply a receipt? You can see how a well written term is the difference between a simple payout and a fight to get it.

Note: Your lawyer cannot hold back funds without the other party’s lawyer’s (and client’s) approval unless it is stipulated in the contract. Ask for it up-front, while everyone is engaged.

When the time comes to either write or review an offer, make sure that the terms and conditions are clear and simple. Your lawyer can assist you with a properly written term, but an experienced REALTOR®️ is a great (and qualified) resource, as they should have written more than a few of these in their careers. It will save you headaches, or even lawsuits later on.

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