November 14, 2016 in Investor Resources
One of the most complicated tasks when starting out is knowing the legal ramifications of what should be in the wholesale contract. This article will be a great foundation to start with. However, laws are different in each state, so the best advice in this article is to consult an attorney.
Starting out can be expensive with legal fees. In my experience, I paid over $1,800 in legal fees to generate contracts I use for lease options. Of course, most newbies starting out do not have that kind of money. I will go through the most important content that need to be added in your purchase contract. I recently wrote a similar article regarding this topic on Bigger Pockets where I am a regular contributor regarding wholesaling. I want to go deeper in depth in this article and discuss the most critical things to have in your real estate contract.
If your read the prior article I discuss the basics such as the importance of the having the correct names (buyer and seller) on the contract, the importance of the property address and the property identification number (PIN), and the additional terms and conditions that should be added. However there is a lot of information that need to be added in the additional terms and conditions that were discussed.
Additional Terms & Conditions
If you have done any study or written a contract you understand the promises you made with the seller. You agree to purchase the property as-is, you agreed to pay all closing cost, and you agreed there would be no fees associated with the transaction. Since we understand this information is correct then it need to added to the contract. This is where the additional terms and conditions section of the contract is important.
When making an agreement I’m sure you’ve heard if its not written down then it wasn’t part of the agreement. This is correct for your wholesale agreement contract as well. Here are a few clauses we use in our contract to make sure we clearly convey what is agreed upon in the contract:
- Buyer agrees to purchase the property as-is
- Buyer agrees to pay all traditional closing cost associated with the transaction
- Close of escrow will occur on or before close of escrow date identified in the contract
- Seller to ensure clear title
- All content left in or on the premise after close of escrow will become the responsibility of the buyer
- If the property is being rented, the seller must furnish lease agreement to the buyer within 24 hours
- If rented Cash for Keys provision will need to be instituted
- Buyer to be named ___________ and/or Assignee
So lets discuss importance of the majority of these condition in the contract.
Buyer agrees to pay all traditional closing cost associated with the transaction
This clause is good to have because it informs the title company or closing attorney that all closing cost will be a debit to the buyer. So when the title company prepares the settlement statement the contract states what the buyer is paying for. We use the word “traditional” because their may be other fees or liens that maybe associated with clearing the title and you as the buyer want to ensure you are not on the hook for paying those fees.
Seller to ensure clear title
This is used to inform the seller that we will not pay for any outstanding liens that maybe on the title of the property. For example when marketing to tax default leads you are clearly aware the sellers are behind on taxes. When conducting the negotiations we want to ensure the seller is aware they are responsible for paying the tax debt that is owed. The debt normally will be paid from the sellers proceeds at closing.
All content left in or on the premise after close of escrow will become the responsibility of the buyer
This can present a serious headache if not expressed in the contract; we inform sellers all personal artifacts must be removed from the property prior to closing. One of the worse situations a wholesaler can be in is to have a property close and the seller still have personal property in it. In some states depending upon the law this can present occupancy challenges. As a wholesaler you want to provide your end buyer and property that is vacant unless otherwise agreed upon.
We’ve added this verbiage to our contract from experience, the seller and the buyer is aware once the transaction closes anything left in the property becomes the property of the owner so it will eliminate the unwelcome occupancy and any hold over provisions that may be a problem for our buyer. If there is a tenant in place we have to use another provision that outlines tenancy which is discussed next.
Seller must furnish lease agreement to the buyer within 24 hours
When dealing with tenancy each state differ, but by ensuring the seller provide you with the lease agreement within 24 hours of contract acceptance you will be able to review all the terms in the lease. Once you have the lease you can determine if you want to move forward and wholesale the contract or cancel the contract. Some wholesalers like to review the lease prior to contract acceptance either way is fine because you still have the inspection period to cancel the contract if you deem the tenants to be a hassle.
Cash for Keys
In the event the property is being rented and their is a long term lease (not month to month), you will need to make a concession to the tenant to make sure they cooperated with the transfer of ownership. This is what I mean by that statement; In most states the lease agreement transfers with the ownership, so if you purchase a property and the tenant have 7 months left on the lease then you have to honor that lease. To avoid this we offer the tenants a cash for keys (CFK) agreement. This is a one page agreement stating that the buyer will offer the tenant money to vacate the property. This is basically offering to pay for the tenants moving expenses. This is negotiable it can be what ever amount you agree upon. Again this is between the new buyer (wholesaler) and the tenant. We inform the seller what we will offer the tenant but this agreement will need to be signed by the legal tenant and the wholesaler.
Once the agreement is signed then you can proceed with the transaction and inform your end buyer the property will be vacant at the time of closing. The funds for the cash for keys will be deducted from your assignment fee or you may provide 50% up front and the balance at closing to ensure the tenants have vacated the property.
Buyer to be named ___________ and/or Assignee
This is as crucial as the inspection period. The and/or Assignee clause gives the wholesaler the authorization to assign the contract to another party. If this is not added to the contract either by the buyers name for example Johnson LLC and/or Assignee or in the additional terms the seller can dispute the assigning of the agreement. If this happens then the wholesaler will have to utilize transnational funding to take the property down and then sign a contract with the end buyer. In essence this clause gives the wholesaler the latitude to assign the contract or double close the contract.
These are a few things that must be incorporated into a contract. Again, it is important to have an attorney review and approve the documents before using them. The contract can be very detailed or it can be very basic depending upon your preference. As long as you have a strong foundation, your contract can be an effective tool.
If you would like to add anything I may have missed or would share please leave your comments below