Posted By Larry Tolchinsky on December 1, 2015
Last Update: 02/22/16
Buying residential real estate in Florida is a major event in the lives of most buyers. For some, it’s a big deal to buy a new home or condo! Fortunately, the Florida legislature understands this fact so they passed laws that protect residential buyers (residential buyers get legal protections that commercial buyers do not).
However, this means that buyers will require certain things to occur while they are under contract to purchase a new home. Buyers have to take steps to protect themselves from unscrupulous agents and brokers as well as ignorant sellers or sellers trying to pull a fast one.
How? We’ve discussed title issues before and how important it is for a buyer to make sure that they are getting clear title to the property they are purchasing. And, that’s not the only step buyers should take while under contract to buy residential property in Florida. There are what are known as “conditions precedent” in most purchase agreements which require certain conditions to be met before the transaction closes.
What Is A Condition Precedent In A Contract To Buy Residential Real Estate?
A “condition precedent” is a legal term;
It is a written term or terms in the purchase and sale agreement. It describes an act that must be performed before the buyer can or is required to close the transaction.
That “act”, in many instances, is a “condition” — if the condition isn’t met, then the deal doesn’t go through. Most conditions in Florida residential real estate contracts protect the buyer.
4 Condition Precedents That Should Be Met Before A Florida Home Buyer Closes
There are many terms that a buyer may want to include in the purchase agreement as a condition to his or her purchase of the home or condo. Those terms can be influenced by the age and condition of the property. The terms can also depend upon the buyer’s circumstances (financially or otherwise). Because of the weather in Florida, conditions precedent can also vary depending upon how much the buyer feels the need to insert protections into the deal before being required to close the transaction (ex. flooding and windstorm issues).
Here are some common concerns of buyers that appear as “condition precedents” in a Florida residential real estate contract:
In most instances, buyer’s will need to obtain a loan to finance the transaction. If so, the buyer will want the closing contingent upon he or she obtaining a certain loan amount, at a determined interest rate for a set period of time. The buyer, and the lending company, will also require that the property appraise at a certain value before being required to provide the loan or close the transaction.
2. Physical Aspects of the Property
Here in Florida, lots of residential real estate is waterfront, or near some body of water. Parts of South Florida are near the Atlantic Ocean, near the Gulf of Mexico, and parts are near wetlands.
Which means that it’s important for the buyer to make sure that the quality and suitability of the property — real and personal, including all the improvements — meets with his or her approval before the deal is closed.
Also, things like mold, propensity for flooding, and termite infestations of the improvements need to be investigated by the buyer. Inspections can also include expert analysis of the drainage or the waste removal for the property (is there a city sewer hook-up or is there a septic tank?); subsurface conditions; and structural soundness of outbuildings, pumps, and piers.
Most sales contract have a time period (an “inspection period”) within which inspections are to be performed so that the buyer has an opportunity to make any objections he or she may have known to the seller about the condition of the property (the seller then can be obligated to fix the issues, the buyer can cancel the deal, the buyer can accept the property as is, etc. – any of these options are available – it depends on the terms of the contract as to which of these applies).
3. Survey of the Property
Usually one thinks of a survey as making sure that the boundaries for the land itself are as they should be, and how the buyer understands them to be. This is true.
However, surveys can also delve into things like the location of improvements on the site; third-party rights of access and easements; what exists in the surrounding area that might impact on the buyer’s use and enjoyment of the land; and information on neighboring property.
4. Consent And No Surprises
In some residential real estate transactions, there are parties that must agree to the purchase along with the seller and buyer. For example, when a condo is being purchased. In South Florida, there are lots of condominiums being bought and sold — and in most, if not all of those transactions, the condominium association will need to consent to the transaction before the deal is completed. (As a general rule.)
Similarly, in some single family home purchases, there may be a homeowner’s association that may need to provide consent to the transaction.
Buyers will also want to know that there are no outstanding assessment owed by the Seller to the association. And, if there are outstanding condo fees (or a large pending assessment), then the buyer may want to terminate the purchase agreement under his or her appropriately-worded condition precedent in the purchase contract.
Protecting Yourself When You Are Buying Florida Residential Real Estate
If you believe that you have found the house or condo of your dreams here in South Florida, congratulations! This is a wonderful place to live and work. However, before you sign the contract to buy the property, you should consider all of the conditions that you want in place, just in case you need things to be fixed and/or happen before being required to close the deal.
Many conditions precedent are standard in Florida real estate contracts, and your real estate agent will be able to point these issues out to you. However, if you don’t feel comfortable or you prefer an independent party review your contact (recommended), there’s plenty of help available. (See –19 Reasons To Hire a Real Estate Lawyer When Buying or Selling Florida Real Estate).
A good piece of advice when you and your family are purchasing or selling your family home in one of the biggest transactions of your life is to at least talk with a Florida real estate lawyer. Getting someone to review all of the paperwork isn’t as costly as most of us think it is. And, it’s always a lot cheaper than paying to fix a problem after a closing occurs. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
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