A Contract Series – Part 1: The Arizona REALTORS® Residential Resale Purchase Contract - Buyer Attachment

 

This is Part 1 of a series of articles discussing the major provisions in each section of the Arizona REALTORS® Residential Resale Real Estate Purchase Contract (10/22) (“Contract”). The articles are intended to give practical guidance on advising your client, writing an offer, evaluating an offer, and navigating contingencies.  It is vital for everyone involved in a residential transaction to understand the terms of the Contract, how those terms are generally interpreted, and be aware of potential issues.

This series of articles will cover the Contract Property Section; Financing; Title & Escrow; Disclosure; Warranties; Due Diligence; Remedies; Additional Terms and Conditions; and Seller Acceptance.  The articles will also address other forms related to the Contract such as the Pre-Qualification form, Loan Status Update, Seller’s Property Disclosure Statement, and the Additional Clause Addendum.

As an initial comment, educate your clients about the Contract, help them anticipate issues, and manage their expectations, which will help you manage your risk.  Provide your clients, both buyers and sellers, with a copy of the Contract[1] before an offer is written or submitted, which will allow your clients the opportunity to become familiar with the form and ask any questions before their focus becomes their dream home or the terms of an offer.

 BUYER ATTACHMENT

The Buyer Attachment is an important risk management tool – don’t overlook utilizing it.  The buyer acknowledges the receipt of the Attachment just above the buyer’s signature in Section 8. 

 

Client education and managing expectations is critical for reducing risk and a smoother transaction.  When you provide the buyer with a copy of the Contract, review the Buyer Attachment with them and discuss the Attachment Check list.  In doing so, you will prompt discussion and can address any questions or concerns. 

 Buyer Attachment Checklist:  During the review of the Buyer Attachment Checklist, consider discussing the following items. 

 1.      Encourage the buyer to read the entire contract before they sign it and to ask questions if they need help understanding any of the terms. 

 2.      Give the buyer a blank copy of the Seller’s Property Disclosure Statement (“SPDS”) form before they submit an offer. Advise them that they can and should utilize the SPDS as a checklist in conducting desired inspections and investigations. Once they receive the completed SPDS from the seller explain that they should review it carefully, investigate any blank spaces, unclear answers, or other important information.  Additionally, keep in mind that a buyer should never waive a SPDS without first seeing the form. 

 3.      Prepare the buyer for the inspection period and make sure that they understand that all inspections must be completed within 10 days, or the time otherwise agreed upon.  Assist them in locating qualified inspectors and discuss how they can verify square footage and sewer/septic.

 4.      Although the buyer will not be able to obtain an insurance quote until they have identified a property, suggest that they contact their insurance agent about homeowners’ insurance early in the process.  Flood insurance, if necessary, can be very costly.

 5.      If the buyers have not started the loan process, encourage them to do so immediately and start gathering all necessary loan information, such as W-2s, pay stubs, tax returns, etc.  Also, advise the buyer to make sure their down payment and closing cost funds are liquid and available. 

6.      Explain the importance of reviewing the title commitment within five days after receipt, especially Schedule B, which lists exceptions from coverage and the Requirements to close escrow.  Encourage them to ask questions. 

 7.      Explain the importance of reviewing any CC&Rs or homeowner’s association governing documents within five days after receipt.  CC&Rs generally empower a homeowner’s association to control certain aspects of home’s use. The CC&Rs may be very strict, especially those addressing landscaping, RV parking, and play equipment.

 8.      Make sure that the buyer will be available to conduct their pre-closing walkthrough. A prudent buyer should conduct their pre-closing walkthrough at least three days prior to the scheduled date for close of escrow and utilize the  Buyer Pre-Closing Walkthrough form.

 Buyer Advisory:  The Buyer Attachment also encourages the Buyer to review the Buyer Advisory, (which is also available in Spanish) consult with other advisors, and verify anything that they deem important.  Many of the more common issues that a buyer may decide to investigate or verify are summarized in the Buyer Advisory. 

Real Estate Agent’s Duty to Assist the Buyer in Verifying Information:  The Arizona Department of Real Estate (ADRE) Commissioner’s Rule A.A.C R4-28-1101(I) requires that a real estate agent take reasonable steps to assist a client in verifying the accuracy of information relevant to the transaction.  The related ADRE Substantive Policy Statement (SPS) SPS 2005.13 clarifies the Commissioner’s Rule and states that an agent is expected to take reasonable steps to assist their client in verifying information when a reasonably prudent real estate professional has reason to question the accuracy of the information being provided, or where the client has questioned the accuracy of the information.   

 Wire Transfer Fraud Warning:  Finally, the Buyer Attachment warns the buyer about wire transfer fraud and advises them to always confirm wiring instructions independently prior to wiring any money.  And advise the buyer that if they receive a request for contact information during the transaction to make sure that the request is from the escrow agent, not a third party attempting to perpetrate wire fraud. Consider providing the buyers with the Wire Transfer Fraud Advisory as well.  

 Conclusion:  The Buyer Attachment is not a part of the Contract between the parties, it is an advisory designed to alert the buyer to some of the major provisions in the Contract. The Buyer Attachment is an excellent buyer education and risk management tool.  Its proper use will benefit everyone in the transaction.

 Next Article – Property Section

K. Michelle Lind, Esq. is an attorney who currently serves Of Counsel to the Arizona REALTORS®.  She is also the author of the book - Arizona Real Estate: A Professional's Guide to Law and Practice (3rd Ed.) . 

For more real estate related articles, visit Michelle’s Blog at Arizona Real Estate – A Professional’s Guide to Law & Practice. (arizonarealestateprofessionalguide.blogspot.com)

This article is of a general nature and may not be updated or revised for accuracy as statutory or case law changes following the date of first publication. Further, this article reflects only the opinion of the author, is not intended as definitive legal advice and you should not act upon it without seeking independent legal counsel.  2/24/23

---

[1] The Arizona REALTORS® offers Spanish translations of the most often used residential transaction forms.  These translations are not to be signed as transaction documents but used as companion translations to assist Spanish-speaking clients.