The Best of the Legal Hotline: Offer Revision Revelations


 Debbi Conrad  |    December 16, 2020
Legal Hotline

This year, we have been introduced to a revised WB-11 Residential Offer to Purchase, not just once but twice, and to an updated WB-14 Residential Condominium Offer to Purchase. The questions on the WRA Legal Hotline have shed some light on which revisions are well received as well as which updates may not have had the intended impact.

Appraisal Contingency Offers Flexibility

If the buyer and the seller decide to agree by amendment to lower the purchase price to the appraised amount, before the buyer 
delivers notice to the seller objecting to the appraised value, 
would the buyer need to add to the amendment that the notice is no longer required to be delivered to the seller per the Appraisal Contingency terms in the new WB-11?

A buyer in receipt of an appraisal report indicating an appraised value that is less than the purchase price has several options: 

  1. The Appraisal Contingency will be deemed satisfied unless the buyer delivers a notice objecting to appraised value, so a buyer may allow the deadline for the Appraisal Contingency to pass and proceed with the transaction. 
  2.  Per the contingency, the buyer may deliver a notice objecting to the appraised value along with a copy of the appraisal report to the seller. If the seller has the right to cure, the notice triggers that right to cure. If there is no right to cure, timely delivery of the documents makes the offer null and void.
  3.  Notwithstanding the Appraisal Contingency, the buyer may propose an amendment to modify the purchase price. The amendment might propose the amount in the appraisal report, or it may be any other amount the parties agree upon. If the buyer takes this approach, the buyer is not required to deliver a notice and a copy of the appraisal report because they are not triggering the Appraisal Contingency. Note, however, the seller may want to see a copy of the appraisal report before agreeing to an amendment. Delivery of only a copy of the appraisal report, without a notice objecting to the appraised value, does not trigger the seller’s election to cure, nor does it make the offer null and void if there is no right to cure.

See page 4 of the October 2019 Legal Update, ‚ÄúWB-11 Residential Offer to Purchase ‚Äď 2020 Edition ‚Äď Part 2,‚ÄĚ at www.wra.org/LU1910.

When Loan Commitment Requires Appraisal

The appraisal was due July 25, the loan commitment was due August 2, and the closing was originally scheduled for August 7 but was extended by amendment to August 13.

The cooperating agent drafted an amendment to extend the appraisal deadline as well as the loan commitment deadline, but the seller declined to extend them. The buyer delivered to¬†the seller a loan commitment letter on August 3 (one day after¬†the deadline) that included conditions to satisfy, including an¬†appraisal. The commitment was accompanied by a notice stating, ‚ÄúBuyer acknowledges and accepts this loan commitment and authorizes its distribution to the seller and seller‚Äôs agent. Buyer recognizes buyer‚Äôs obligation to close is no longer contingent upon buyer obtaining financing.‚ÄĚ The buyer received the appraisal report on August 5 (after the deadline) and the appraised value was less than the purchase price.

The cooperating agent and broker have said since the loan commitment had an appraisal condition, the buyer is able to renegotiate or walk. The listing agent believes since the Appraisal Contingency deadline passed and the buyer has properly delivered a loan commitment, the buyer is obligated to close this transaction. Who is correct in this situation?

Pursuant to lines 270-277 of the WB-11 Residential Offer to Purchase, the buyer’s delivery of written loan commitment, signed or accompanied by written direction to deliver, satisfied the Financing Commitment Contingency. The Caution at lines 278-280 provides:

CAUTION: The delivered loan commitment may contain conditions Buyer must yet satisfy to obligate the lender to provide the loan. Buyer understands delivery of a loan commitment removes the Financing Commitment Contingency from the Offer and shifts the risk to Buyer if the loan is not funded.

The Appraisal Contingency in the offer at lines 308-326 is not in play because the deadline for the buyer providing a copy of the appraisal and notice objecting to the value has passed by.

The delivery of the loan commitment to the seller, with conditions stated therein, satisfies the Financing Commitment Contingency. If there are no other unsatisfied contingencies in the offer, the offer will be ‚Äúfirm,‚ÄĚ and the buyer will be obligated to go through with the purchase.

The conditions stated in the loan commitment do not become conditions of the offer ‚ÄĒ they are not incorporated into the offer. If the conditions in the loan commitment cannot be met, the buyer would have to work that out with the lender. If the buyer cannot close because the lender will not provide the funds because of the low appraisal or any other unfulfilled condition in the loan commitment, the seller would have a legal claim against the buyer for breach of contract and can pursue the remedies in the Default section of the offer.

See pages 1-3 of the October 2019 Legal¬†Update , ‚ÄúWB-11 Residential Offer to Purchase ‚Äď 2020 Edition ‚Äď Part 2,‚ÄĚ at www.wra.org/LU1910 and ‚ÄúPick Me! I Didn‚Äôt Include an Appraisal Contingency!‚ÄĚ in the October Wisconsin Real Estate Magazine at www.wra.org/WREM/Oct20/PickMe.¬†

Once Is Enough for Radon

The buyer submitted an offer and checked off the Radon Testing Contingency on both the offer and also on Addendum A. The seller is countering the offer, saying it is redundant and asking to strike out the lines on Addendum A. The cooperating agent realizes it is redundant, but why even ask to strike it out? The agent is¬†asking this stupid question because he does not want the case¬†to be, ‚Äúline so and so from Addendum A is hereby stricken‚ÄĚ to mean that the contingency is coming out of the offer as well. The agent is thinking if the buyer agrees to strike the radon testing contingency out of Addendum A, then the other party is going to assume the contingency is also being removed from the offer.

Sometimes with two contingencies covering the same topic, it can be concerning since they may have different standards or deadlines, so it makes sense to just have one. As far as the concern about countering out the language of one of the contingencies being interpreted as both, the parties may draft the counter-offer so it makes it clear that the ‚ÄúRadon Testing Contingency at lines _______ in the (offer/addendum) is hereby deleted but the Radon Testing Contingency at lines ______ in the (offer/addendum) is a part of this transaction.‚Ä̬†¬†

See pages 7-8 of the September 2019 Legal Update , ‚ÄúWB-11 Residential Offer to Purchase ‚Äď 2020 Edition ‚Äď Part 1,‚ÄĚ at www.wra.org/LU1909 and pages 3-4 of the July 2020 Legal Update ,¬†‚ÄúWB-11 Residential Offer to Purchase ‚Äď Take 2,‚ÄĚ at www.wra.org/LU2007.¬†

The Social Security Number Hot Potato

Do the sellers have to disclose their Social Security numbers to the buyers on the Seller Certification of Non-Foreign Status form? The agent recently had one where that line was left blank. The agent usually does not even ask for Social Security numbers anymore and has the seller give them directly to the title company. The agent sent the form with the offer to the title company, and the title company said it needs the Social Security numbers on the certification form. The agent knows most people would like to give that information to as few people as possible.

Although the broker may provide the seller with a blank copy of the WRA Seller Certification of Non-Foreign Status as an example or for reference purposes, it is intended in the WB-11 Residential Offer to Purchase for the sellers to complete, sign and deliver the form without involving or copying any licensees. Under the modified FIRPTA provision language, if the seller is not a foreign person, the certification is provided no later than closing. A certification of non-foreign status is to be delivered to the buyer or a qualified substitute, with the qualified substitute, that is, the title company, being the clear preference. The seller would provide the certification directly to the title company so a licensee would never receive, transmit or hold a completed seller certification of non-foreign status form. Firms obviously do not want to be involved with a form that includes a seller’s taxpayer identification number, such as a Social Security number; and sellers do not want that information sent to the buyer. Such information typically is, however, provided to the title companies.

In other words, it is critical for all licensees working with sellers to emphasize to them in no uncertain terms that they should provide any completed seller certification of non-foreign status form directly to the title company and never provide a copy or transmit it to a licensee. This is important for the sellers‚Äô best interests to help ensure their Social Security numbers will not fall into illicit hands, will not become part of the firm‚Äôs files, and will not be unnecessarily transmitted ‚ÄĒ every time personal information is transmitted¬†
or retained, another opportunity for the crooks and hackers is presented. The safest course is for the seller to always complete and transmit the form to the title company in accordance with the title company’s instructions and in whatever manner the title company prefers in the interest of safeguarding this private, identifying seller information. Completing a certification at the title company would be the most secure because there is no transmittal needed.

The IRC definition of a ‚Äúqualified substitute‚ÄĚ includes a title company or attorney responsible for closing the transaction. If the qualified substitute receives a completed seller certification of non-foreign status, the qualified substitute is then, in accordance with ¬ß 1445 of the Internal Revenue Code, to deliver a statement to the buyer, under penalty of perjury, advising they are in possession of the seller‚Äôs certification. The broker may retain a copy of this certification from the title company without worry or risk as it does not contain any Social Security number or other sensitive information in it.

See ‚ÄúHit Me FIRPTA One More Time ‚Äď FIRPTA ‚ÄėTake 2‚Äô‚ÄĚ in the August 2020 Wisconsin Real Estate Magazine at www.wra.org/WREM/Aug20/FIRPTA, pages 4-8 of the July 2020 Legal Update , ‚ÄúWB-11 Residential Offer to Purchase ‚Äď Take 2,‚ÄĚ at www.wra.org/LU2007 and the November 2019 Legal Update , ‚ÄúWB-11 Residential Offer to Purchase ‚Äď 2020 Edition ‚Äď Part 3,‚ÄĚ at www.wra.org/LU1911.

Check the Box and Watch the Rescission Deadlines  

The buyer client has an accepted offer on a condominium. The buyer did not have the condominium minutes or budget when drafting the offer; those were just provided by the seller. The buyer is objecting to the financial state of the condominium per the budget. The buyer did not check the box at line 149 in the WB-14 Residential Condominium Offer to Purchase for the Contingency for Additional Condominium Information. Is the buyer still protected and able to kill the offer pursuant to the offer language in the Condominium Disclosure Materials section on lines 107-148?

The buyer has a limited time to exercise their right to rescind as stated on lines 131-133 of the WB-14:

BUYER RESCISSION RIGHTS: As provided in Wis. Stat. § 703.33(4)(a), Buyer may, within 5 business days after receipt of all the required disclosure documents or following notice of any material changes in the required disclosure documents, rescind this Offer by written notice delivered to Seller. 

The timeline is key with respect to when the seller received the budget and other required condominium disclosure materials. To assure proper rescission, the buyer would provide the seller with written notice, in a timely manner, delivered by an authorized delivery method. The buyer may use any form of writing but may wish to use a WB-41 Notice form. 

See pages 1-4 of the August 2020 Legal Update, ‚ÄúWB-14 Residential Condominium Offer to Purchase 2020,‚ÄĚ at www.wra.org/LU2008.

1, 2, 3 ‚Äď You're Bumping Me!

The agent has a question about the bump clause provision on¬†lines 335-347 of the WB-11 Residential Offer to Purchase. Below line 341 (3), there are two boxes to check, and then there is a new line that says ‚ÄúOther.‚ÄĚ Is ‚ÄúOther‚ÄĚ a third option for line 341 (3)? The agent wants to add an accepted offer on the buyer‚Äôs home as a third option and wants to make sure if the agent adds that, it is part of line 341 (3), and a third option.

The Bump Clause is now a separate check box item in the WB-11 and has that ‚Äúspread out‚ÄĚ formatting with lists of numbered items and bullet points to enhance user understanding. In terms of what a buyer must deliver to the seller to avoid being bumped, the provision gives a numbered list:

  1. Item (1) at line 338 states a written waiver of the Closing of Buyer’s Property Contingency must be delivered to the seller if the box on line 328 has been checked, making the Closing of Buyer’s Property Contingency a part of the offer. 
  2. Item (2) gives the opportunity to make other provisions in the offer subject to the bump clause. A waiver of any contingencies written in the blank at lines 339-340 must also be delivered. If ‚ÄúN/A,‚ÄĚ a dash ( ‚ÄĒ ) or nothing is written in, then the second item does not apply and may be disregarded.
  3. Item (3) on lines 341-347 lists other items, if any, the buyer also must deliver to avoid being bumped. There are check boxes for a bridge loan and for third-party reasonable written verification of funds, and a blank to write in other requirements where is says ‚ÄúOther.‚ÄĚ For instance, additional earnest money might be written on the Other line.

If the seller wants to require the buyer deliver a copy of an accepted offer on the buyer’s home as something that the buyer must deliver to avoid being bumped, it may be written in at lines 345-346.

Thus, there is a laundry list of the items on lines 338-347 a buyer must deliver to the seller if the buyer receives a bump notice and wants to avoid being bumped. 

See page 5 of the October 2019 Legal Update , ‚ÄúWB-11 Residential Offer to Purchase ‚Äď 2020 Edition ‚Äď Part 2,‚ÄĚ at www.wra.org/LU1910.

Be sure to see the videos and other forms resources at www.wra. org/FormsUpdate. 

Debbi Conrad is Senior Attorney and Director of Legal Affairs for the WRA.

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