FIXTURE:  What is a fixture?  1) Method of Attachment 2) Agreement of the Parties 3) Intent of the Parties 4) Adaptability

Was it custom made for this property?

FLIPPER, RENOVATION, ER LANGUAGE WHEN LISTING AGENT:  “Seller states that permits were/were not required for renovation work.  If requested by Buyer, Seller agrees to provide Buyer with copies of all permits for all renovation work completed during Sellers ownership of property.  Seller states that costs of renovation were greater than/less than $1000.00.”


FLIPPER, WHEN REPRESENT BUYER:  “Seller agrees to provide Buyer copies of all permit(s) for renovation work completed during sellers ownership of property.  All permits to be provided during the inspection period along with a list of participating Contractors/Vendors.”  


FLIPPER LANGUAGE WHEN REPRESENT BUYER:  “Contractors lien protection shall be included in the title commitment and policy with any and all premiums paid by seller.”  THIS DOES NOT EXIST-SEE TITLE INSURANCE


FORECLOSURE STRIPPING:  Foreclosure Stripping is the process in which the owners of a foreclosed property will remove fixtures and fittings from the property in an attempt to salvage some of their investment. Malicious foreclosure stripping is done by home owners who render damage throughout the property to significantly decrease its value and cause resale to be almost impossible. Foreclosure stripping has been a growing trend in recent years [1] and has reached an all-time high in 2009 because of the economic downturn.


FORCED DECISION  “Buyer and Seller agree to extend buyers (Inspection Period, COE, Appraisal Period, etc) to xx/xx/xxxx.”


“If seller does not agree to extend buyers xxxx period, this Addendum shall serve as notice to seller that buyer is exercising their right to cancel this purchase contract dated xx/xx/xxxx, and request the immediate return of buyers Earnest Money, effective xx/xx/xxxx, and within buyers x days to give notice of property rejection and cancellation of this purchase contract.”




“Buyer and Seller agree to extend buyers Inspection Period to xx/xx/xxxx.”


“If seller does not agree to extend buyers Inspection Period, this Addendum shall serve as notice to seller that buyer is exercising their right to cancel this purchase contract dated xx/xx/xxxx, and request the immediate return of buyers Earnest Money, effective xx/xx/xxxx at 11:45pm and within buyers 10 day Inspection Period and delivers notice of property rejection and cancellation of this purchase contract.”


FSBO:  HomeSmart agents are not allowed to sell their home FSBO. ADRE says that your employing broker must reasonably supervise all of a licensee's real estate activities.  This means reviewing all of your listing and sales and rental contracts.  Therefore, you must create a HomeSmart transaction file for each real estate transaction that you are involved with either as the Listing Agent and/or Seller, Selling Agent and/or Buyer, or Landlord or Tenant.

FSBO:   Q: We have a buyer that wants to buy one of our friends home which is basically FSBO (not on MLS).  How do I start the paperwork on this/?  Just a contract and seller is unrepresented?... no MLS plano..

A: Hi Krista yes that would be fine.  If you're going to just represent the Buyer and the Buyer is paying you, you'll have the Seller sign the form called the Declination of Real Estate Representation that is on our website.  If you're representing the Buyer, but the Seller is paying you, you'll just need the Seller to sign the Unrepresented Seller Compensation Agreement.  For the MLS requirement you can just upload a Missing Paperwork form (you won't be fined of course) just to cover why we don't have that doc in the file.

Everything else will be the same as normal.




FURNITURE, PAYMENT DUE:                                                                                                                                                                

“Certified Funds in the amount of $x payable to Seller due at title company on or before COE.”


FURNITURE INCLUDED  “Purchase includes all furniture as seen on xxxxx with  no warranties, conveyed on a separate bill of sale at no monetary value.  Seller and buyer to agree on bill of sale during inspection period or seller to provide bill of sale during inspection period or bill of sale to be agreed upon during inspection period.”

FURNITURE INCLUDED:  “All furniture included as seen on xx/xx/xxxx.  Furniture to convey on separate bill of sale AS-IS with no warranties at no monetary value.  Bill of sale to be agreed upon and finalized during the inspection period.”



“Line x of purchase contract (and/or Line(s) xx of counter offer are hereby removed/deleted.  All furniture/personal items to convey by separate bill of sale (or separate written agreement).”





HAFA Affidavit form required by the U.S. Treasury  (See “Arms Length Transaction”)  Agent is not allowed to receive compensation if he/she is also the Buyer. 

5/28/2013:   Part of the Federal Government's Making Home Affordable (MHA) program, the Home Affordable Foreclosure Alternatives (HAFA) program was developed to give homeowners a way to settle their mortgage debt without going through a foreclosure. The buyer and seller of a HAFA Short Sale will now be required to fully execute the HAFA Affidavit prior to and as a condition of closing.


The HAFA Affidavit form certifies: 1) an arms-length transaction; this is the sale of a property in which the buyer and the seller have no existing relationship (they're not family members, friends, business associates, etc.), and are acting in their own self-interest and are under no undue influence or pressure from other parties., and 2) that no money is being given or received that is not reflected on the HUD-1 Settlement Statement.

The HAFA Affidavit will also include an agreement that there are no other agreements, understandings, contracts or offers related to the current or subsequent sale of the property.  

HARD MONEY LOAN:  I would write on page 8, something like:  1)  This is a hard money loan.  Section 2 Financing contingencies shall apply.  OR  2)  This is a hard money loan to be treated as an "All Cash" Sale.  Section 2 Financing contingencies shall not apply.

HARD MONEY LENDERS (HMLs) are typically private individuals or small groups that lend money (Hard money) based on the property you are buying, and not on your credit score. Usually these loans cost (percentage-wise) much more then an average mortgage, often times up to twice what a regular mortgage does, plus high origination fees.

HAULED WATER:  No Domestic water well addendum required.  Hard to get financing, specialty lender, is hauled water common to the area?

HELOC FINANCING:  CASH, SOURCE OF FUNDS IS REFI/HELOC:  Page one of PC:  $xx price, $xx earnest money, $xx cash on or before COE (see additional terms and conditions). 


On page 8 write something like:  Source of Funds:  This purchase agreement is contingent upon the successful refinance/HELOC for the buyers property located at 123 Main St, Tempe, AZ.  Refinance/HELOC shall be completed and funds made available to buyer (or funds deposited with escrow) no later than 3 days prior to close of escrow.  Financing Contingencies in this purchase contract, section 2, line #’s xx-xx, shall not apply.  Buyers preliminary refinancing/HELOC Lender approval letter is attached.”


HIGHEST AND BEST OFFER  (Send via email, could also ask for response on counter offer form).

“Good morning.  The owner has received multiple offers for the property located at 123 Main Street, Tempe, Az. He/She would like to extend an option to all parties to improve their original offer to a new highest and best net offer to the seller before x:00pm, MST, xx/xx/xxxx.  If interested, please submit an addendum to your offer including any new price and/or terms with a seller acceptance time of x:00pm MST that same day.”

I have 2 offers on my listing and the Sellers want to send a multiple offer to each of them. I haven't done a multiple offer so do I just write "Please send your highest and best offer " on the Multiple offer form itself, or is there a counter-offer that is supposed to go with the multiple counter offer?  Please advise. 

       If you're just asking for the highest and best from these Buyers, you would simply email both agents.  You'd say something like

"Thank you for your offer.  I wanted to let you know that we've received multiple offers for this property and my Seller is requesting an addendum with your Buyers highest and best offer by no later than xpm on xx/xx/xxx.  If we do not receive an addendum from you prior to that time, your offer will be considered as it is currently.” 

The only time you would do a Multiple Counter Offer is if you're asking the Buyer to change specific terms.  In this case, with a highest and best request, you're simply asking them to update their offer.


HOLDBACK AT ESCROW:  “Seller and Buyer Agree to Close Escrow with incomplete repairs.  Seller & Buyer further Acknowledge and Agree that a “Holdback Account” will be established and $x will be withheld  from Seller’s proceeds by Title Coompany.  Funds will be made payable to xyz company (or vendor or seller or and/or nominee named before COE) for the following repairs as agreed in the BINSR.  LIST:  xx, xx, xx, xx.  Repairs to be completed no later than xx/xx/xxxx.  If repairs are not completed by agreed upon date, the balance of any funds remaining unused in the “Holdback Account” to be immediately released to buyer.”  

HOLD HARMLESS (EXAMPLE):  "Should Buyer/Seller waive the SPDS (or xxxx), Buyer does so against the advice of HomeSmart.  Buyer agrees to defend, indemnify and hold harmless HomeSmart, it’s Designated Broker and Agent of Record against any and all claims that may be made regarding the property (or xxxx) and its condition."  BUYER/SELLER IS HEREBY ADVISED TO SEEK LEGAL, TAX AND ANY OTHER PROFESSIONAL ADVICE DESIRED BY CLIENT.”


HOLD HARMLESS, INDEMNIFICATION:  "Buyer agrees to close escrow and accepts the property in it's present physical condition without the Southwest Gas utilities installed.  Seller & Buyer acknowledge and agree that Buyer will assume all responsibility for having said gas utilities and all related equipment installed after close of escrow, and Buyer agrees to indemnify and hold harmless Seller and both brokerages of record regarding gas utilities."

HOA VIOLATION DURING ESCROW:  See changes during escrow, get updated SPDS, send CURE notice if necessary, Addendum, Holdback,  etc.


HOA ADDENDUM NOT AVAILABLE PRIOR TO SUBMITTING OFFER LANGUAGE  "This contract is contingent upon the Seller completing and delivering page 1 of the HOA Addendum to the Buyer, and the parties agreeing to the subsequent terms completed on page 3 of the HOA Addendum within 5 days of contract acceptance.  In the event the terms of the HOA Addendum are not agreed to within 5 days of contract acceptance, the Buyer may cancel this contract during the inspection period with a refund of the earnest money."

HOA CANCELLATION (ALSO SEE CANCEL, HOA):  The buyer has given instructions to cancel the transaction due to their disapproval of the HOA Disclosures.  Page two of the HOA Addendum, specifically lines #42-43 state that the buyer is allowed five days after receipt to disapprove.  There is no need for a "mutual cancellation" since the contract gives the buyer the unilateral right to cancel for multiple/various reasons, which could include cloud on title, SPDS, Insurance Claims History, BINSR, HOA Disclosures, etc, etc.  The buyer has given their lawful instructions to cancel, the title company should follow those instructions.  The earnest money should also then be released back to the buyer for these same reasons.

HOA CANCELLATION:  Loan Denial due to litigation.  Use unfulfilled loan contingency notice.

HOME WARRANTY TRANSFER:  Seller to transfer current Home Warranty at no cost to buyer.  Current Home Warranty is issued to ____.  Expiration date is xx/xx/xxxx.  Buyer to contact x at 123-4567 or for more information.”

HOMESMART FEES:  Hello Jerry, I was informed that you will not be taking commission for the file above and will be paying the HomeSmart fees on your own. In order to pay the fees of $300 to HomeSmart you will need to write a check to the title company so they can pay us.  Title Co Commission Instructions should read $300 to HomeSmart to cover your transaction fee’s, please have them correct to show $300 to HomeSmart.

Please let us know if you have any further questions.  Thank you, Jessica


Both agents are HomeSmart, Listing file is complete, buyers agent is delinquent with paperwork on the sale file.  Please release Listing Agent's commission check to listing agent Valerie Cox.  I have copied her on this email.