Does an Assignment Really Work?
Certainly it does. However, you need to include at least one escape clause in the purchase and sale contract in case you can’t find a buyer in the short amount of time that you have, or in case that buyer for some reason can’t complete the purchase.
Escape clause? What’s that?
It’s very commonly used in most real estate sales transactions. It’s a clause that says the sale/purchase is “subject to” or “contingent upon” something. If that something happens, you can gracefully (without financial harm) back out of the deal. In modern transactions there are three widely accepted escape clauses that most sellers will agree to without blinking (and that won’t weaken the transaction). These are considered below.
1. Finance contingency–You have written into the contract that the deal is contingent upon your getting financing. No financing, no deal and you’re out without penalty. This usually runs for 30 days, but you must reasonably look for financing.
2. Disclosure contingency–You must approve the seller’s disclosures. If you don’t approve them, there’s no deal. But the time limit here is usually very short.
3. Professional inspection–You must approve a professional inspector’s report. If you don’t approve it, there’s no deal. Usually you have 14 days to get the report and then either approve or disapprove it.
The problem with these contingencies is that they probably don’t offer you enough protection if you’re doing an assignment. For example, in order to get the deal at a rock bottom price, you may have to offer the seller cash. In a cash sale, you don’t have the protection of a finance contingency.
You might rely on the disclosure and professional inspection contingency, but those usually run out after 14 days max. At that time you either agree to move forward without their protection, or back out of the deal. If you agree to move forward, and something adverse happens (for example, your buyer flakes out), you’re stuck for the house!
What About Other Contingencies?
As a result, most investors who are flipping using an assignment want to add other contingencies. These are easy to add, but not easy to get accepted.
You can make the sale contingent on anything: your uncle dying and giving you an inheritance, your great aunt coming from Australia to approve the deal, sun spots, anything at all. However, any contingency you add that’s not reasonable is likely to be considered frivolous by the seller and a reason not to sell to you. Thus, the more escape clauses to protect yourself that you include, the less likely you are to get the seller to sign. And the fewer escape clauses you include, the greater your risk in case you can’t get a buyer to close the deal.
Isn’t There Some Way To Limit My Liability Here?
There may be a way to limit your liability in case you can’t make the deal. Most modern purchase agreements include a “liquidated damages” clause. If you sign this (and the seller does, too), then the total amount of damages that you are likely to have to pay in the event you don’t (or can’t) make the deal, is limited to your deposit. If you only put up a $1,000 deposit, you don’t have a great deal at risk. There are ways around this too, though.
Some readers, I’m sure, are asking why are all these cautions necessary for an assignment.
The reason is that assigned purchase agreements can be iffy. There’s a lot that can go astray between signing them and actually concluding a sale between seller and new buyer. If the sale can’t be concluded, the seller is, of course, likely to get angry. And you want some good cover when that happens.
At our local monthly mentoring meetings we discuss things like a ‘catch all’ escape clause that is easy to get past a seller, ways to avoid giving a check for earnest money deposits, and much, much more to protect yourself and to ensure you get paid. If you haven’t checked out one of our meetings, you should stop by and see what your competition is learning!
To your investing success,
Udo Ginczek
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