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A contingency is a formal clause in a real estate contract that enumerates particular conditions that must be met by either the buyer or the seller in order for the principals to proceed to the next step in the contract. Found in every offer-to-purchase or sell contract, contingencies protect the interests of both buyers and sellers. Failure to meet a particular contingency can result in breach of contract and possible penalties to the party at fault.

Basic Contingencies in Real Estate Contracts

Contingencies are divided into categories according to their purpose:

(1) protection for the seller

(2) protection for the buyer

(3) mutual protection of both buyer and seller. Most real estate contracts contain two universal contingencies: a mortgage contingency and a home inspection contingency.

Mortgage Contingency – The mortgage contingency stipulates that the buyer will make every effort to obtain a mortgage for a particular amount, at a prevailing interest rate within a specified period of time. If the buyer succeeds in obtaining a mortgage as described, the mortgage contingency is said to “be removed.” If the buyer fails to obtain a mortgage, the contingency is unmet and the buyer may withdraw from the contract without penalty. A mortgage contingency therefore protects the interests of the buyer by releasing him from the contract to purchase if financing is unavailable.

Home Inspection Contingency – This contingency protects the buyer because it allows the buyer to withdraw from a contract without penalty, including the return of any deposits made, if the home inspection reveals the house to be unsuitable because of issues like material defects, significant termite damage or dangerous electrical wiring. If the issues discovered are fixable, the buyer has the right to negotiate the repairs he wants with the seller. In turn, the seller may agree to repair everything, a few things or in some cases, even refuse to make any repairs. If agreement on repairs cannot be reached, the contingency cannot be removed and the contract becomes null and void.

Other Common Contingencies

There can be as many contingencies in real estate contracts as there are needs of buyers and sellers. Even though most contracts are boiler-plate, it is more common than not for additional contingencies to be added depending on the protections needed by the principals. In some states it is perfectly acceptable for the real estate agent representing the principal to add contingencies as needed. In other states, only an attorney can add a contingency.

Attorney Review Contingency – One of the contingencies most commonly added by real estate agents is a 24-hour attorney review. This means that after the contract has been signed by both the buyer and seller, the buyer’s attorney has 24 hours to go over the contract and approve it before it becomes official. An attorney review insures the legality of a contract, an important safeguard for both buyer and agent, especially in states where agents may add contingencies as needed.

Sale of Buyer’s Home Contingency – Agents refer to these contingencies as Hubbards. A Hubbard can be used effectively in any type of market; however, they are used more often in a slow market than a normal market. A Hubbard contingency allots the buyer a specified period of time to sell his/her current home before buying the new one. If the buyer’s current house does not sell within the stipulated time (usually 2-3 months) and the buyer does not want to buy the new house without the sale of his/her old home, the contract to purchase the new house is voided without penalty. This protects the buyer from becoming over-leveraged by owning two homes at once.

There is a caveat, however, that provides some protection for the seller. During the period allotted to the buyer for the sale of his/her home, the seller may continue to market the home on which the Hubbard contingency has been placed. If the seller receives a second offer from another buyer that is more attractive than that constrained by the Hubbard, the seller is free to accept the second offer if the first offeror, after being notified, does not want to proceed to closing.

Reverse Hubbard – This contingency gives the seller a specified period of time to locate a new home after an offer to purchase has been accepted. If a suitable home is not found, the seller may withdraw from the contract without repercussions. Just like buyers, most sellers prefer to sell the home they are in before buying another. If sellers have no pressing need to sell and a substitute home that they like cannot be found, they may decide not to sell at all.

Miscellaneous Contingencies

Contingencies can be as varied as the circumstances require. For example, suppose you are a buyer and you find a nearly perfect home except it lacks the in-ground pool on which you had your heart set. You wouldn’t mind installing the pool yourself after purchasing the house, but you have no idea if the backyard is large enough to accommodate a pool that would meet all the town requirements of setbacks from the road and from adjoining properties. Your agent or attorney can write a contingency into your offer to purchase that allows you a specified time to investigate the feasibility of installing a pool and permits you to withdraw from the contract should the yard not accommodate a pool.

Contingencies from buyers can include anything from asking a seller to remove a deteriorating shed to installing a new septic system. Similarly, sellers will sometimes present their own contingencies in their offers to sell like asking buyers to allow them to store, for a specific period of time, a second automobile on the property after the sale or making the offer to sell contingent on closing by a particular date.

There are two main points to remember when using contingencies in purchase and sale contracts. First, multiple or unreasonable contingencies by either buyer or seller tend to weaken the position of each. Sellers should require as little as possible from buyers to avoid turning them off and buyers run the risk of having their offers refused if the contingencies are perceived by sellers as off-putting.

The second point to remember is to work with an experienced and licensed real estate agent and a local real estate attorney to ensure that the contract protects your interests. Once you have secured a tight, tidy contract you can relax knowing that your rights are protected.

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Conflict of Interest is one cause of reduced fiduciary, and conflict of interest can also come in numerous shades and from strange quarters. “Visible” conflict (we’ll call it) comes in the recognizable form of a landlord’s agent simultaneously representing a tenant with his own landlord (while the tenant believes it is the protected party). “Invisible” conflict can come in the form of two agents working together to form a transaction not within the framework decided upon by the principal. And now there is a new conflict player on the field, and it is the most insidious of them all: “Short-Term Sales Pressures”, where typically publicly-traded real estate brokerage companies face ever-increasing demands of stock price performance based on underlying revenues. It is one thing for market pressures to invigorate commodity sales like soda, beer, cars, etc.; it is another thing altogether for market pressures to invigorate revenues (sell more faster) in an environment where fiduciary and agency are the root of the service.

Jonathan Hsu, CEO of New York-based 24/7 Real Media puts is precisely, “public company executives [are] more short-term focused [on] quarterly earnings targets.” And Micky Drexler, former chief executive of Gap Inc. and AnnTaylor Stores describes the day-to-day life in a public firm when he was quoted saying, when you run a public company “you have a gun to your head.” These pressures are forced down to regions and individual offices – even to day-to-day and individual transaction levels. The demand for revenues and how that demand is pounded down the channel to direct client interaction, this author believes, is a prospect wrought with potential self-serving; a perfect cocktail to invite breach of fiduciary in the name of “inking the deal.”

Using the best example of fiduciary as law firms, the ABA Model Rule 5.4(d) would clearly prevent the publicly traded law firm from existing within the United States. In an article by Kwabena Appenteng of Greene and Letts (Feb. 4, 2009) she states, “The sheer pressure added by shareholders may cause firms to operate in a manner that works best for their shareholders: maximizing short-term profit by becoming involved in deals (see Enron and Bernard Madoff).” She continues, “Such “practicing to the share price” could cause firms to become too focused on the quarterly earnings statement and less concerned about adhering to the rules of professional responsibility.”

But in another industry governed by statutory agency and fiduciary law – real estate – large public companies practice every day. And as they are in a “sales” business, it would be difficult to believe that the local sales manager would be immune from corporate pressures to increase sales revenues. This author is dubious of the noble integrity oft pronounced of these companies objectivity and to stand pure in the face of demanding stockholders. Representing more clients is one thing. Influencing clients in any way to feather their own nest is another.

More precisely, most organizations function with two distinct areas of Sales and Operations. In real estate, Operations are where the brokerage activities occur – where the daily representation of clients, negotiations, lease documents, sale contracts, reside. Sales would then be the promotional activities of the company, seeking new clients via marketing and solicitation. Where the client’s fiduciary gets vaporized (or is at real risk of it) is when the pressures of the Sales area of the real estate company (sale manager) directly attempt to influence the increased or improved outcome (money and the swiftness of its receipt) of the Operations (where the agent must be immune from such undue influence). In the presence of any undue influence on Operations has the direct negative impact on the agents responsibility to remain objective and represent the client with zero conflict. To say the least, any client who has an agent who is being influenced by its sales management for increased revenues will seek to impart that influence on the client’s transaction – increasing the clients cost upon which the transaction fee is based and or closing a transaction faster to satisfy the sales management.

Large, publicly-traded real estate firms have substantial demands on meeting the demands of the shareholders to increase fees faster. When seeking tenant representation or any form of real estate representation), the best course is to seek the superior talent, governed by absolute fiduciary, and trusted to maintain agency, with zero potential for any form of influence whether, visible, invisible, flagrant, insidious or tainted by the possibility of “practicing to share price” or the demands of internal sales management. Law firms don’t do it. Clients should seek out real estate firms that don’t do it either.

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HIP, basically contains all the details pertaining to the house. It helps reduce the number of failed home sales, detecting frauds, which has been constantly on the rise. It is an excellent facility that helps compare the features of different properties. In the past, there was not much choice let to the people buying properties. It is only after the sales deed was signed that the buyer would get to know the features of the house.

This would be a risky situation to the buyer. If there were any problems regarding the property, then there was not much choice left with a buyer. There would not be left to do after the property was sold out. Moreover, the condition of the property or legitimacy of any documents provided would also not be available to a buyer that could help them in decision making. This kind of situation would also give rise to the increase in the number of failed transactions.

HIP also includes an Energy Performance Certificate that contains all the related information on how to cut CO2 emissions and fuel bills. Apart from this, it will also provide information regarding the house, that will help buyers decide whether to go ahead with buying property. This kind of document provides all the require information on the legal title of the house, that also includes the legal title, standard searches and energy efficiency.

HIP is also known as Seller’s pack. A landlord must have this if he or she wishes to sell property. It helps evaluate the market value of the property. Before selling a property, it is a must to have this kind of certificate. It is a must for marketing a property for sale. This holds true in case of a housing developer, estate agent or private individual. A prospective buyer can benefit form this kind of information. It provides vital information regarding the house. From a buyers’ point of view, it offers higher credibility. It can help them make a wise decision.

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The crash in the real estate market followed the collapse of the sub-prime market. This was the cause of sudden foreclosure of innumerable companies. Those which are not forced to close business endured billions of dollars in losses. Homeowners have been adversely affected by the news reports regarding sub-prime markets’ fall and yet many fail to understand the exact impact it has had on them, and why this has happened to them.

Sub-prime mortgages have been highly beneficial to many property buyers in the last few years. Even those who did not have good credibility could easily get sub-prime mortgages to invest in the real estate scenario to make a fast buck. Buyers with bad credit histories got these loans easily as the guidelines governing them were lax and did not follow stringent quality control. The lenders were also happy doing this as they could easily charge higher rates of interest when they sanctioned mortgages to borrowers with low credits. Some speculate that the lenders were not too bothered as, in case of payment defaults they could always make a foreclosure and resell the property for a profit.

So where did all this money come from? The money was procured from various sources. Lenders could easily get loans at low interest which they could pass on to the borrowers at a higher interest. Some of these sources were not so simple. Many governments including the American government allow loans from central bank.

The property market was very stable and had reached an unprecedented high by 2005. This stability had a reverse effect and it had people making unrealistic projections about the future growth in real estate and soon quite a few homeowners found themselves sinking into the loan traps.

The housing market started to decline during the period 2005-2006. This period saw over enthusiastic lenders giving loans to candidates with bad credibility. The lenders were looking at mammoth profits but the bubble started to burst once the interests became north bound. Increasing interest rates led to multiple problems in the housing scene. There is no exception to the rule that north bound interest rates spell trouble in the real estate market. Low rates encourage buying whereas high rates lead to a fall in prices. During the boom builders could not build fast enough for the markets, but with rising interest rates, there was increased default in mortgage payments, leading to a fall in housing demands. By the mid 2006 the market was witnessing the beginnings of an imminent crash.

Before long, lenders could no longer generate more money from their customary sources. With lesser funds on their hands the lenders suddenly became more cautious about whom they lent money, so getting a loan became increasingly difficult for potential homebuyers. The strings started to tighten from all directions. Investors became cautious, which in turn made the borrowing parameters stringent. Homeowners, who had adjustable loans, were facing an uphill task with their mortgage payments as increased interest rates translated to bigger installments every month. It was also becoming very difficult to refinance existing loans to as underwriting guidelines made it very difficult for them to get new loans. So they could not shift to fixed interest loans to salvage their deteriorating financial conditions. The net result was that foreclosure was the only option open to them and before long the market was engulfed in a flood of foreclosures.

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Buyers – If you plan on buying a home then most likely you will have to pay for a professional appraisal before the bank will lend you money. This is to protect the bank. You should get an appraisal of the house before you make an offer. This will protect you and save you money. Most people list a home not knowing the true value of the home. As a buyer if you get a home appraisal estimate online before you make an offer you will be able to make an offer that is reasonable and based on historical data. I recommend making an offer for 3 percent less than the estimated value of the home.

Sellers – The number one reason a home doesn’t sell is because the owners have priced it too high. They normally take a realtor’s advice and sometimes pick a number out of the air. You want to make sure you know how much the home is really worth before picking a price. Getting an online appraisal at one of the free websites is a good idea, and getting the value from an experienced real estate agent is also a good idea. Once you have an estimate then make the price of the property a couple of percent less. This will get you more foot traffic and ultimately the home will sell sooner.

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When confronted with this tough decision, most agents would rather achieve excellence in customer service. They feel that is the pathway to a growing, sustainable business.

In my many years in real estate sales and real estate training and coaching, I have encountered few agents who reach the upper echelon of real estate sales with the exclusive view of customer service. Before you jump to conclusions of my viewpoint, it is essential to excel at both disciplines of customer creation and customer service in order to become a Champion Agent or Champion Team. While trying to climb the mountain of success, one of these sections will be secondary to the other. Your investment of time and energy will be larger with one than with the other. Your staff will pick up on your signals of which is more important to you and will adopt that prioritization, as well. The decisions you make in this one area will determine how quickly you execute your success plan.

In terms of earnings and income, I have met many agents who earn large sums of money who are world class in client creation and down right poor in customer service. While these agents don’t generate the referrals they should because of their customer service, they have developed viable business because of their top-notch skills in client creation. Again, I want to emphasize this is not the ideal platform for success. It is better than a limited focus exclusively on customer service. In the end, you must achieve a balance between these two areas. While climbing the ladder of success, your focus must be tilted to customer creation, however.

I have wrapped up the real word for customer creation in a fancy wrapper to make it more palatable. It’s like the exterior coating they put on aspirin, so it doesn’t upset our stomachs as much. Let me peel off the coating of customer creation and call it what it really is . . . prospecting.

As the leader on the team, your primary job is to be a Champion’s example; to be the model that all your other administrative and sales staff will follow. You need to set the example of prospecting on a daily basis. Let’s have a real truth moment in our relationship. The truth is you are in sales . . . right? Sales is a profession where we have to find prospects to sell our services to.

Champion Team Rule – Prospecting is the first step in the sales process. You are in sales; you need to prospect.

If you don’t prospect, you won’t find prospects. If you don’t find prospects, you won’t be able to make presentations to prospects to create customers. If you don’t have customers, there won’t be anyone for you to serve. You won’t be able to deliver exceptional service, so you won’t be able to create clients. These clients you don’t have won’t be able to send you referrals, so you can acquire new prospects easier.

We really have an unlimited supply of what we can prospect. Webster defines prospecting as “seeking a potential customer; seeking with a vision of success.” In the definition, it doesn’t say waiting for the phone to ring, sending out post cards, hoping someone calls me. It clearly says that prospecting is a seeking activity. Let me share a guarantee from ancient scripture. “Seek, and you shall find.” The guarantee is if you seek, you will find. I hear all the time from people, “Well, what if it doesn’t work?” You are assured it will work because seekers become finders.

The second segment of this definition is that we need to “seek with a vision of success.” Webster must have worked in a real estate office before. He knows how other agents can try to pull you down or away from prospecting. You could even have brokers who try to belittle you because of your prospecting. Webster was saying, get your mind to positive, expect good results, focus on that, and you will succeed. Don’t let others negatively influence your vision of success.

The quandary isn’t should I or shouldn’t I prospect. It’s what method should I use and how much prospecting do I need to do daily to achieve my goals in sales, income, and net profit? What standard do I need to set for my team? What sources do I need to invest my time in prospecting? What sources are most effective based on my market conditions? What creates the greatest short-term revenue? What source creates the most significant long-term revenue? These are all points to evaluate before you begin the disciplined process of prospecting.

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You need to pay attention to certain aspects of your home if you intend to sell it. The asking price is a factor that most people you advice you about. It is an important part of enticing buyers, but there are other qualities or features that make your home an individual entity. Besides the price you can attract a buyer with the beauty, coziness, functionality etc of your home.

Another thing that you could do to evaluate your home is to think like a buyer. What aspects of your home would attract you? What features of your home would convince you in its favor?

Here are some tips that can prove to be useful:

- Get familiar with the prevailing home prices in your area and price your house reasonably
- You can add a premium to your house if it is in a good residential area
- Strategize your marketing options and work out a good plan to promote and advertise your home. You could take professional help or even prepare an ad yourself for the local classifieds or for a property website on the net.
- You could arrange for a home showing in person or prepare a home tour with a visual media.
- A good presentation can make good first impressions and that could make a lot of difference.
- No home can be perfect. So don’t gloss over the drawbacks of your home, be upfront and clear about things.
- You can add to the first impression by cleaning up the mess and clutter from your home, and making some minor repairs.
- Create a buying mood by turning on the heater or a/c, create coziness, light up the fire place, open the windows or even by making spaces. Do not follow this rhetorically. Do, what will enhance your home.
- Choose a buyer with care, so that the whole process moves on smoothly
- Consult a house tax advisor regarding your house tax
- Get the basics about the legal transactions involved, be clear about legal terms like contract
- Garner a few tips about negotiation
- Get to know the difference between an agent and a realtor before you decide to choose one of them to sell your home. Ask about the various processes, fees and commissions involved.
- Choose a reputable agent or realtor.
- Put up a board on your front yard stating the above
- Trust your realtor and let him/her guide you through the whole process. Follow his tips to achieve good results.

Selling your home on your own

By no measure is it an easy task to sell your home yourself. It is not just a missing agent, but whole lot of other factors that make it difficult. It is not easy to cut off from a home which is full of memories. You will want some one who will love it the same way as you have done all these years. It is not easy to see strangers walking through your home evaluating every aspect of it. Are you really up to it?

- If you are planning to sell your house on your own, then you will need to put up a sign saying ” home for sale by owner”
- It is advisable to hire a good attorney to cover all the legal aspects of selling a home.
- The attorney can also guide during the making of the contract form. You will need it to protect yourself and the buyer if you are not going through an agent. Things like buyer deposit and local estate laws need to be settled.
- Pick out the best photo that have you have of your home, if you don’t have a flattering picture then get the house professionally clicked so that you can start with your best foot put forward. Many people ignore this, but it is the first thing that a buyer will see about your home.
- When you put up your house for sale by owner, you will have a lot of potential buyers walking in, in the hope of closing an easy deal that is flexible. Be very careful and investigate each potential buyer.

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