Is a Home Buyer Trying to Pull a Fast One on the Seller?
Is a Home Buyer Trying to Pull a Fast One on the Seller?
Can an addendum be part of a contract if it’s not submitted with the offer?
Let’s go over an example.
An offer is made that includes a Seller Possession After Closing Agreement (Form2A8-T). Following some informal negotiations on the Due Diligence Fee and Settlement Date, the buyer agent resubmits a revised offer the next day.
In the revised offer, Paragraph 14 identifies Form 2A8-T as a part of the offer, but a newly-signed Form 2A8-T is not sent with the offer.
The seller signs the revised offer and the Form 2A8-T that had been submitted with the original offer, and sends the signed documents to the buyer agent.
Now, more than two weeks after being under contract, the buyer claims that the Seller Possession After Closing Agreement is not part of the contract because it was not resigned and submitted with the revised offer.
In the view of the NC Association of Realtors, and myself, the Seller Possession After Closing Agreement IS a part of the contract because the conduct of both parties tends to indicate that they intended it to be a part of their contract.
In signing and returning the revised offer and the Form 2A8-T to the buyer agent, the seller’s intent to make the Seller Possession After Closing Agreement a part of the contract is clear.
How about the intent of the buyer? Although the fact that a newly signed and dated Form 2A8-T was not submitted with the revised offer is arguably some evidence that the buyer didn’t intend to make the Seller Possession After Closing Agreement part of the revised offer, it seems to be significantly outweighed by the following:
1) the buyer signed the Form 2A8-T with the original offer;
2) it was identified in the buyer’s revised offer as being a part of that offer; and
3) the buyer did not dispute that it wasn’t apart of the parties’ contract until well after it had been signed by the seller and returned to the buyer’s agent along with the signed offer.
Having said all that, it probably would have been best to avoid confusion by having the addendum updated and signed on the same date as the revised offer.
