This isn’t just true in real estate contract writing. It’s true in general in America.
Technically, it’s called “Freedom of Contract.” (Almost) anything the two sides to a deal can agree to is perfectly acceptable, assuming the basic transaction isn’t illegal.
What that means to buyers and sellers of real estate is that either party can agree to pay the closing costs. Either side can pay the commissions. Either side can choose the law firm or title company to do the closing. Either party can pay the taxes, recording fees, doc stamps, etc., etc., etc.
It often just comes down to money. There is a “traditional” starting point, that is, assumptions based on common practice for who pays for what. If you move charges around, it can be compensated for by changing the purchase price, or some other charge, to balance it out. Sometimes, even a difference in the money is worth it, if something is important to you.
These principles also apply to non-monetary terms. For sellers, the terms of the listing contract can be varied. You may want to preserve the right to sell your property to a friend, relative, or contact you showed the property to prior to signing a listing, and not be responsible for the commission. You might need extra time to move out of a long-held homestead after closing.
You may need a contingency, which means you don’t have to close if you haven’t identified your new home and closed on it yet prior to this closing.
A buyer may need a contingency for the sale of their existing home, if she needs the proceeds to pay for this purchase. Or, a buyer might need to move into the property early, for various practical reasons.
Although there are good reasons to avoid possession changing at a different time than the actual closing, you may still need to do so, and for good reasons. In such cases, it is usually possible to identify the biggest risks in such a plan, and design contract language to work around them.
This is part of what a real estate attorney can help you with. We have seen many, many different transactions go down, with all kinds of complications, and we know both where the greatest dangers are, and how to avoid them, sometimes by the way you structure the transaction, and sometimes with skillful drafting of contract language.
But one thing is always true. You can’t properly manage these risks and complications after the deal is written. It is always best to talk your situation over with a real estate attorney BEFORE you sign that listing, sale, lease or other contract.
Property Law by Tom Brodersen
ANDERSON & BRODERSEN, P.A.,
350 Corey Avenue, St. Pete Beach, FL 33706
(727) 363-6100 www.PropertyLawGroup.com