I wrote a blog post this week called Before You Sign Read Every Line where I talked about the fiduciary responsibility
that we have to our clients to make sure we thoroughly read the contract. We have a fiduciary responsibility to make sure that we read and understand every line and are positive that the contract is written in a manner that reflects our buyer's or seller's intentions. The way a contract is worded can literally mean thousands of dollars in a real estate transaction! I take this responsibility very seriously when preparing an offer.
There are countless numbers of knowledgeable and professional real estate agents. However, I seem to be overblessed with coming into contact with those that don't share my passion about reading every line! Most offers in our area are written on a TAR (Tennessee Association of Realtors) contract. I would assume that anyone in the real estate business in this area would be very familiar with the contract! Since it is standard and customary for homes here to convey with stoves, dishwashers, and built-in microwaves this language is preprinted as a default in all TAR contracts. It clearly says that ranges, and all built-in appliances are to remain in the home.
Below this default clause is:
Other items that will REMAIN with the property at no additional cost to buyer:
Items that WILL NOT REMAIN with the property.
The words REMAIN and WILL NOT REMAIN are capitalized and bolded just as I typed above. There is a large blank paragraph beneath each line to allow room for items to be listed. It is not customary for a refrigerator or washers and dryers to remain. If a buyer wants to negotiate for these items to remain with the home they would be listed in the section that allows for OTHER items that will REMAIN. The paragraph for items that WILL NOT REMAIN is rarely used but comes into play if there is some type of mirror or light fixture that the seller is attached to (and SHOULD have been removed before the home was listed but that is another blog!) or in the rare cases where there is junk or debris that the buyer wants to ensure is removed.
I received an offer this week on one of my listings. The buyer's agent emailed an offer to me without calling to let me know that she was going to be sending an offer or calling to confirm that it had been received. I don't expect a phone call every time something is sent over, but I do appreciate a courtesy call to let me know an offer is on the way! Since the email address was from a popular junk-type email account and also contained attachments, it was read by my server as junk mail. Thankfully, I check my junk mail folder most every day and found her offer which only gave us a few hours to respond!
After taking the time to READ her offer, the first thing I noticed was that her buyer's did NOT want the stove, dishwasher
and microwave to remain. Since so many people are going to stainless steel I thought perhaps her buyers were going to upgrade the kitchen and didn't want the hassle of having the old appliances removed. There would be no reason to write stove, dishwasher, and microwave in the contract to REMAIN with the property because they are already clearly listed in the preprinted default paragraph. And, the contract is very clear that these items WILL NOT REMAIN with the property.
But, since this isn't my first rodeo I picked up the phone and called the buyer's agent. I stated that I had found her offer in my junk mail (no response) and would be talking with my seller's immediately. I told her that their request to have the stove, dishwasher, and microwave removed were unusal so I just wanted to confirm that the contract was written correctly. She stated that yes, of course those items had to stay with the home. Again, I pointed out that she had manually written in the contract that those items WILL NOT REMAIN. The agent suddenly had a light-bulb moment and said, "Oh, it was late when I wrote that up. I meant they should remain so just change it."
My first thought was...WHY are you not familiar with your own contract?
It makes no sense to me that an agent would restate the terms of her own contract; and restate them in a way that completely CHANGED what is standard and customary. I understand we all get tired. I understand we all make mistakes. I just couldn't fathom that this potential huge mistake was the result of putting something in the contract that didn't need to be put there from the beginning!
My seller's did not accept the original offer so I added that those items would REMAIN with the property in our counter offer. I couldn't help but think had I not taken the time to call the agent and confirm her buyer's intentions, we would have prepared our counter only changing the price. The buyer's agent had no idea that she had worded her original offer incorrectly and they would have countered based solely on price. If that had happened, we would now have a finalized contract in place that left her buyer's in a new home with a kitchen that had zero appliances. By her not being familiar with the standard TAR contract, or trying to re-state items that are already clearly included in the contract, she almost cost hereself, and her clients a lot of money!
In negotiating this deal there have been other "Oh, I meant..."or "we will just put this in the contract but might have to change it later" statements that have come up! So, once again I am shaking my head and wondering where is the fiduciary duty that we are obligated to have with our clients!! Do agents seriously have their clients signs documents with the belief that "everyone will just have to understand we may have to change this later?"
I'm wondering perhaps if it is ME that needs to lighten up and not take things so seriously! After all, it's JUST a legally binding contract! We can always change it later!
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