Many clients across Texas are in limbo due to the recent extreme winter weather. And while every situation is different, here are sections in the TREC One to Four Family Residential Contract (Resale) and related addenda that might apply to these transactions. The Texas REALTORS® commercial contracts and other TREC contracts have similar provisions.
Please call the Texas REALTORS® Legal Hotline (800-873-9155) for additional help understanding how you and your clients can proceed.
If any part of the property is damaged or destroyed while under contract, Paragraph 14 deals with casualty loss. The Casualty Loss paragraph will require the seller to restore the property to its previous condition as soon as reasonably possible. Under the circumstances, that may not be feasible. If that is the case, this paragraph provides the buyer with three options:
- Terminate and receive a refund of the earnest money.
- Extend the time for performance up to 15 days, which extends the closing date.
- Accept the property in its damaged condition with an assignment of insurance proceeds, if permitted by the insurance carrier, and receive a credit from the seller at closing in the amount of the deductible.
Keep in mind that the property will still need to meet the lender’s underwriting requirements for the loan if the contract is subject to the Third Party Financing Addendum. If so, the lender may require re-inspections, re-appraisals, or repairs.
Under the Third Party Financing Addendum, if the property approval is not obtained, the buyer may terminate the contract by providing notice to the seller not later than three days before closing and the buyer will receive a refund of the earnest money. If the closing is approaching, but the property has not yet met the lender’s underwriting requirements, the buyer will need to consider whether to terminate the contract or submit an amendment to delay the closing. The buyer is obligated to make every reasonable effort to communicate with their lender regarding the status of the loan.
Paragraph 12 of the One to Four Family Residential Contract (Resale) provides that appraisal fees, loan-related inspection fees, final compliance inspection, repair inspection, and expenses incident to any loan are expenses payable by the buyer. However, the parties may have agreed for the seller to pay up to a certain amount of the buyer’s expenses.
The lender may require certain repairs to be completed prior to approving the loan. Under Paragraph 7E of the One to Four Family Residential Contract (Resale), neither party is obligated to pay for these repairs unless they have agreed otherwise in writing. If that is the case, the contract will terminate and the buyer will receive a refund of the earnest money. In addition, if the cost of the lender required repairs exceeds 5% of the sales price, the buyer may terminate and receive a refund of the earnest money.
In most cases, delays with performance and closing may occur. It is important for the agents to communicate with all those involved in the transaction, including the other agent, the title company, the lender, and the parties’ attorneys.
If the parties are not using a TREC or Texas REALTORS® contract and the contract does not expressly provide for the rights and duties when all or a material part of the property is destroyed without fault of the parties, the Texas Vendor and Purchaser Risk Act will apply. The act protects the purchaser of real estate when there is a binding contract and the property is destroyed before the purchaser has taken legal title.
If clients are under a temporary lease agreement, review the following provisions regarding repairs:
- Paragraph 14, Repairs and Maintenance, provides that “Except as otherwise provided in this Lease, Tenant shall bear all expense of repairing and maintaining the Property…unless otherwise required by the Texas Property Code.” However, the Texas Property Code requires a landlord to make a diligent effort to repair and remedy a condition if the condition materially affects the physical health of safety of an ordinary tenant as long as other conditions are met.
- Under a Buyer’s Temporary Residential Lease, Paragraph 18, Termination, the lease may terminate if the contract terminates prior to closing.
You can share with your clients that the State Bar of Texas legal hotline (800-504-7030) will answer their basic legal questions and connect them with local legal aid providers. And you, as members of Texas REALTORS®, can call the Legal Hotline (800-873-9155) for help understanding how you and your clients can proceed.
This comment is only partially accurate…”if the property approval is not obtained, the buyer may terminate the contract by providing notice to the seller before closing and the buyer will receive a refund of the earnest money.”
It should say by terminating no less than 3 days before closing. You can’t terminate 1-2 days before closing because the property isn’t approved by the lender and still keep your EM.
This will get people in trouble.
Thanks for the feedback. The post has been updated to clarify this point.
Minus that issue, it was a useful article that may help agents understand some of the options that are available in the event of a storm.
Another helpful point is to advise buyers to get the property reinspected after such storms. It is a material expense, but the peace of mind is worth it.
I think you should add something about updating the Seller’s Disclosure
I am in the middle of a cash contingency transaction, working with the buyer. The seller has a septic. Buyer paid for it to be inspected, seller paid for the pumping. We had to extend option of course, due to the storms my sellers fell behind In getting their property ready. So we can extend closing? By 15 days?
Since the contract states that OP and EM be deposited within 3 days- and it only accounts for Saturday, Sunday, and Holidays- I believe you might need to add something about natural disasters, or undrivable roads, etc.