- WB-11 Residential Offer to Purchase
- WB-40 Amendment to Offer to Purchase
- WB-41 Notice Relating to Offer to Purchase
- WB-42 Amendment to Listing Contract
- WB-44 Counter-Offer
- WB-46 Multiple Counter-Proposal
- WB-47 Amendment to Buyer Agency
The following questions have been recently submitted to the Wisconsin REALTORS® Association in regards to new forms.
Earnest money
The buyer has agreed to pay additional earnest money within five days of acceptance. Line 43 of the new 2010 WB-11 Residential Offer to Purchase refers to U.S. Mail delivery. If the box at line 43 is marked “N/A,” does this preclude mailing the additional earnest money called for at lines 11-12?
No. Line 11 provides that the additional earnest money may be mailed, commercially delivered or personally delivered. Therefore, unless the language is struck at line 11, the WB-11 allows earnest money to be mailed. The delivery provisions on lines 34-55 of the offer are for the delivery of documents and written notices only.
Water treatment systems
Before taking a listing, the listing broker inspected the property and saw there was a reverse osmosis water system. The seller said the system was rented when the listing broker asked about it. The offer was presented and nothing was said about the osmosis system. Is this acceptable?
Brokers must consider rented water treatment systems both at the time of listing and when the offer is presented to the seller. The updated definition of fixtures, found at lines 185-195 of the new WB-11, now includes water treatment systems. It is important when listing the property to ask what systems are rented and make that information available to cooperating brokers. If the rented water system is not excluded at lines 17-18 of the offer, the seller will need to counter the buyer’s offer or be prepared to purchase the system for the buyer. Drinking water systems, house water filters or other systems are now by definition fixtures and must be excluded at lines 17-18 if they are rented.
Pre-closing walk-through
The buyer wants to have his home inspector do another home inspection before the closing. Can the buyer do this per the walk-through provisions?
Regardless of whether the buyer has had inspections or tests done, the buyer has the right to view the property again within three days before closing. There are two purposes for the walk-through provisions at lines 204-207 of the new WB-11: (1) to make sure that the property has been maintained in the condition it was at the time of the offer and that any damage that occurred since then has been repaired, and, (2) if the seller agreed to cure defects or otherwise make repairs, to make sure that such repairs were correctly performed. The walk-through is not an opportunity for the buyer to have a home inspector conduct an additional home inspection.
Occupancy agreements
The agent was looking at the new offer and realized the occupancy section has been removed. Can the buyer still have an early occupancy?
Yes, the parties may negotiate for pre- or post-closing occupancy. The broker may provide terms in the additional provisions section of the offer or consider using an addendum such as the Wisconsin REALTORS® Association Addendum O to the Offer to Purchase – Occupancy Agreement. The WRA Addendum O has been recently updated and includes many optional provisions relating to occupancy including, but not limited to, occupancy charges, security deposits, maintenance, utilities, property taxes and keys. The 2009 version is available on zipForm® or for purchase at www.wra.org/forms.
Closing of buyer’s property contingency
The buyers have to sell their current home before they can buy the new property. They have an offer on their home. Should the buyers use the Closing of Buyer’s Property Contingency in the new WB-11?
Although the buyers do have an accepted offer on their property, they cannot purchase the new home until that offer closes. In such a case, because the buyers cannot complete the purchase of a new home until they have sold their current home, including the Closing of Buyer’s Property Contingency in their offer is prudent and practical. If the buyers’ buyer does not close by the date specified at line 308, the buyers will not be obligated to buy the new property.
The re-crafted contingency on lines 307-314 of the WB-11 automatically includes a “bump clause” for the seller. Until the buyers’ property closes, the seller may continue to market the property for sale and accept secondary offers. If the seller accepts another bona fide offer, the seller may notify the buyers of this fact. The buyers must then consider whether they can proceed with the transaction and waive the Closing of Buyer’s Property Contingency or whether they must terminate the offer on the new property.
Loan commitment — written authority to deliver
The buyers have a loan commitment from the lender and they have signed it. Can the broker now forward this commitment to the seller?
The question here is whether the buyers’ signatures constitute written authorization to deliver the loan commitment, as required by lines 240-243 of the new WB-11. Some lenders require the buyer to sign the commitment as evidence of the agreement between the lender and the borrower to fund the transaction. Such a signature is not evidence that the buyers have directed delivery of the commitment to the seller.
The offer now provides that the buyer must review the commitment and then give written authorization to deliver. Buyers, lenders and brokers are cautioned to not deliver a loan commitment without the buyers’ prior written delivery authorization. The written delivery directive must accompany the offer. The buyer, for instance, may authorize delivery of the loan commitment by using a WB-41 Notice Relating to Offer, signing the loan commitment in a manner that directs delivery to the seller or attaching a cover letter.
Home inspection contingency
The buyer is thinking about writing an offer. In the Real Estate Condition Report, the seller states that there was a hail storm that caused some damage to the roof. The seller did not, however, repair or replace the damaged shingles after the storm. How can the buyer use the new Inspection Contingency in the WB-11 residential offer in this situation?
The new Inspection Contingency on lines 413-435 of the WB-11 provides for three types of possible inspections: a home inspection, a component inspection and follow-up inspections recommended by authorized home inspection or component inspection reports. The preprinted language in the contingency calls for a home inspection by a Wisconsin-registered home inspector, who is required by law to have a certain level of expertise and to conduct inspections and make reports according to certain rules.
The contingency provision can also be completed to provide for an inspection of a particular component or item by a qualified independent inspector or a qualified third party, for example, an experienced roofer could inspect the roof. Given that the seller has disclosed the damage to the roof, the buyer may want a roof inspection. If the roof inspection discloses damage and defects beyond what is disclosed in the RECR, the buyer may issue a notice of defects. If, however, the nature and extent of the damage disclosed in the inspection report is the same as that disclosed by the seller in the RECR, then the buyer may not issue a notice of defects. As stated on lines 427-428 of the offer, defects do not include conditions of which the buyer had actual knowledge or written knowledge, including the nature and extent of the condition, before signing the offer.
What happens if the fact situation is different? Assume that the RECR was silent regarding any roof damage because the seller did not know of the damage. The buyer included an Inspection Contingency in his offer and the Wisconsin-registered home inspector listed roof damage on his written home inspection report and recommended a roof inspection.
The third type of possible inspection contained in the Inspection Contingency on lines 413-435 of the new WB-11 offer to purchase is a follow-up inspection. The trigger for a follow-up inspection is a written report from an authorized home or component inspection recommending a follow-up inspection. When working with buyers it is important to have inspections conducted soon enough to allow time for any recommended follow-up inspections to be completed before the deadline at line 423. Please also note also that the follow-up inspection provision does not authorize testing. If testing is required, an independent testing contingency must be included in an addendum, additional provisions or an amendment.
WB-40 Amendment to Offer
The agent has a question on the new Amendment to the Offer to Purchase. What is expected on Lines 30, 32 and 34, and what was the thought process behind it?
The agent understands “drafted by” as the agent who drafted the amendment for the buyer or seller. The agent understands “presented by” as the agent who presented the amendment to the seller or buyer who would be accepting the amendment as drafted by the other party. But “delivered by” is confusing. Delivered to whom? The other agent? The other party to the transaction? Back to the party to the transaction that originated the amendment so that both now have a signed copy?
The form is somewhat unclear as to who the person delivering the contract is. Any broker delivering the amendment could complete Line 32. For example, it may be completed by an agent who drafts the amendment for the buyer and delivers it to the listing agent to present to the seller. It could be completed by a listing agent who drafts an amendment for the seller and delivers an amendment for the buyer’s consideration. It may also remain blank in circumstances where an agent is working with both buyer and seller.
Tracy Rucka is a Staff Attorney for the WRA.