Delaying the Effective Date of a contract

Delaying the Effective Date of a contract

William MorganPro Member
Fix & Flip or Hold · San Luis Obispo, CA · Member since 2012 · 136 posts · 63 votes

Our CA company routinely offers property for sale on the MLS. The way it normally works is;

  1. We sign a Purchase agreement with a seller.  
  2. Change the "Active" status to "Active under contract
  3. Wait for the Buyer to submit their deposit to escrow

There are occasionally problems where the Buyer gets cold feet and never submits a deposit. We then reverse the transaction (which can take numerous days) and remarket the property, meanwhile our interested Buyers many times have moved on. Rather than changing the MLS status from "Active" to "Active under contract", I am wanting to legally make the effective date of the Purchase agreement the date the deposit lands in escrow. i.e. no deposit, no agreement. I am wanting to create an additional term in the purchase agreement that spells this out. This way I do not turn away other interested Buyers by changing the Status in MLS until we at least have the deposit requirement met.

Question: Is it possible to use Additional Terms to make the effective date of a CAR Purchase agreement become effective only if, and on the date, the deposit requirement is met and therefore NOT have to call the property Under Contract in the CA MLS until that happens? So rather than the property being considered "under contract" before a deposit has been applied, can it be written as to be effective on the date the deposit has been applied?

Here's why.  We have a property that had multiple offers.  We accepted one, and the Buyer is on their 4th business day without a deposit in escrow.  Meanwhile, our other buyers were told another offer was accepted and basically went a different direction (and they were not interested in a backup position).  So here we are in a toothless agreement, potentially disadvantaged by there being no deposit applied.  While it is true the buyers will have an inspection period, we could have kept the deal on the market all of this time they are dragging their feet.  Sure we can deliver a Notice to Perform and allow an additional 48 hrs for them to comply but in the meantime, we're dead in the water.

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  • Specialist · Riverside, CA · Member since 2015 · 6k+ posts · 3k+ votes
    6y

    At least the last version I used even has a specific line for that it reads

    (1) Buyer Direct Deposit: Buyer shall deliver deposit directly to Escrow Holder by electronic funds
    transfer, cashier's check, personal check, other within 3 business days
    after Acceptance (or );_______________________________

    It is on the very first page of the RPA.

  • Escrow Officer · Temecula, Ca. · Member since 2016 · 418 posts · 152 votes
    6y

    So, why not simply add a clause in an Addendum or SCO? Something like "the property shall remain Active on the MLS until the buyer has deposited Good Funds into Escrow in accordance with the EMD requirements of the RPA." As Escrow, I would be hard-pressed to accept an acceptance date that is different that the usual and customary way. I have done it a few times before and it was a nightmare!

    I work with a lot of investors and I had one client specifically tired of this buyer game, or the loan contingency taking forever to remove (back on the old RPA when you could have it stay until COE), so I came up with a strategy that I could offer to you, also. Open up escrows for multiple buyers at one time, there is a legal way to have them all in escrow at the same time and basically whoever performs first, wins. It is the best motivator to a buyer!

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