• California Association of Realtors (CAR)
  • February 5, 2018
  • The basic structure of the Real Estate Purchase Agreement starts with the financial terms of the transaction, then moves to the mechanics of the transaction, and eventually comes to the time frames sellers and the buyers have to provide each other with information required by the Purchase Agreement, review the information, and approve it. The information includes the transfer disclosure statement, preliminary title report , natural hazard disclosure statement, and pest control certificate.

    There is also a time frame for inspection of the home, within 17 days after acceptance, which means the date both parties have signed the Real Estate Purchase Agreement. Satisfactory inspection of the home is probably the number one concern of everybody involved, whether it is performed by the buyers themselves or by their professional home inspector. If the inspection discloses problems, the buyers may request the sellers to perform repairs, but the sellers are not obligated to do so. If they refuse, the buyers can either proceed or terminate the contract.

    In lawyers' terminology, the buyers’ approval of the required information and the condition of the home are conditions of their obligation to purchase it. Residential real estate brokers and sales agents call them contingencies. The object of the various time frames in the Purchase Agreement is to get the buyers to notify the sellers in a little more than two weeks that all the contingencies have been satisfied. But because of the volume of the information required, difficulties in obtaining it quickly, problems scheduling inspections, and general human reluctance to hurry important decisions, that goal is seldom attained. In short, the supposed deadlines in the Agreement are not usually met.

    The CAR Notice to Perform

    The Real Estate Purchase Agreement provides a procedure available to both buyers and sellers to force the issue of whether or not all contingencies have been satisfied. The procedure utilizes another CAR Form called the Notice to Perform . When the seller fails to deliver something by its due date, perhaps the preliminary title report, the buyer may use the Notice to Perform to demand that the seller deliver it “within a reasonable time.” In that case, the buyer would send a Notice to Perform to the seller filled out to convey the following message: “If within 48 hours you don’t deliver the report to me, the deal is off, I will not buy your home, and I will want my deposit back.”

    Conversely, when the buyer fails to notify the seller within the number of days required by the Notice to Perform that the home inspection contingency has been satisfied, the seller could send the buyer a Notice to Perform filled out to convey the following message: “If within 72 hours you don’t state explicitly that the home inspection contingency has been satisfied, the deal is off, I will not sell my home to you, and I will give your deposit back to you.”

    From the Buyer’s Perspective , the Notice to Perform is a useful way to accomplish an objectives. If the buyer wants the home badly and wants it as soon as possible (perhaps school is starting or his interest rate lock is going to expire while rates are rising), sending one or more Notices to Perform to the seller puts pressure on him to get moving.

    From the Seller’s Perspective, the Notice to Perform is a useful way to get rid of an overly demanding buyer. The seller may have decided he doesn’t really want to part with his home, so killing the deal might increase the odds that it won’t sell during the listing period. In this context the Notice to Perform has the distinct advantage of not violating the seller’s listing agreement, which undoubtedly provides the full commission is due if the seller voluntarily takes the home off the market while it is in effect.

    For more information on the California Association of Realtors (CAR) Notice to perform, please visit our website: Stanprowse.com/the-car-notice-to-perform