First Residential

What Is A Real Estate Contingency?

A contingency is a condition or action that must be met for a real estate contract to become binding, and gives the parties the right to back out of the contract (cancel) under certain circumstances. As is the case with all facets of the contract, contingency clauses are negotiated between the buyer and seller.

Since purchasing a home is typically the largest transaction of an individual’s life, rarely does anyone buy a home by viewing the property, falling in love and paying cash the same day. A prudent buyer wants to take time and find out more about the property’s condition, value, neighborhood demographics, financing options, etc. In light of that, real estate contracts are written in a manner that gives buyers (and sellers) an opportunity to fully investigate the particulars of a transaction. More specifically, the contract is written with contingencies.

Here are a few examples of contingency clauses found in most real estate contracts (this list is by no means exhaustive) :

APPRAISAL CONTINGENCY

An appraisal is a written estimate of a property’s market value completed by an appraiser (the appraiser is a licensed and insured objective third party whose job is to give their professional opinion regarding the market value of the home). The value is based upon a market analysis of recent sales prices for similar properties in the area, and the property’s physical condition.

Obtaining an appraisal is a condition of the buyer’s loan. The value established by the appraiser assures the buyer is not over paying for the property and the lender is not loaning more than the home is worth. The appraisal contingency may permit the buyer to go forward with the purchase even if the established value is lower than the amount the buyer has agreed to pay, or give the seller an opportunity to lower their asking price to the appraised value. The lender will not loan more than the appraised value. In those instances where a buyer wants to purchase a home that appraises for less than the sales price and the seller is unwilling to lower the asking price, the buyer would have to pay the difference between the loan amount and sales price in cash. Of course, if the property does not appraise at or above the sales price, either party can cancel the transaction as permitted by the appraisal contingency.

INSPECTION CONTINGENCY

An inspection contingency gives the buyer the right to have the home inspected within a certain time frame (In California it’s usually around 14 -17 days). This protects the buyer by empowering them to cancel the transaction or negotiate repairs in accordance with the findings of the home inspector. Depending on the wording of the inspection contingency, the buyer and seller may take the following actions :

Approve the report and proceed with closing the transaction

Disapprove the inspector’s findings and cancel the transaction

Ask for an extension of the inspection contingency period and request additional inspections if something needs a closer look

Ask the seller to make a repair, replacement, or grant a monetary concession (if the seller says yes, the transaction advances; if the seller declines the buyer’s request, the buyer may cancel-and request a refund of their earnest money deposit)

FINANCING CONTINGENCY

The financing contingency gives the buyer an opportunity to obtain financing to purchase the home. This too protects the buyer. If the buyer cannot obtain financing the contract may be cancelled and the buyer can request a refund of the earnest money deposit. As is the case with all contingencies there is a time limit involved. The buyer is given a certain number of days to obtain financing from a bank, mortgage lender, mortgage broker or private lender. If the buyer does not get an extension of the financing contingency from the seller, the buyer must cancel the contract or secure financing by the date specified in the contract. Otherwise the contingency is automatically waived and the buyer is obligated to close the sale-with or without a loan.

HOME SALE CONTINGENCY

Ideally it’s better to sell an existing home before buying another, unfortunately in the real world it doesn’t always go that way. A home sale contingency gives the buyer a certain period of time in which to sell their current home so they can finance the new home. If the buyer’s existing home doesn’t sell at or above the asking price, the buyer can cancel the contract with no further duty or consequence. The home sale contingency protects the buyer, but can prove cumbersome for the seller (the seller may have to pass on other offers while waiting for the buyer’s home to sell). Ultimately the seller has the right to back out of the transaction if the buyer’s home does not sell within the time frame set forth in the home sale contingency.

PEST CONTROL (TERMITE) CONTINGENCY

The termite contingency stipulates that prior to the close of escrow the property must be free and clear of termites, and that any existing termite damage must be repaired. A licensed pest control company conducts an inspection and provides a written report outlining their findings and the cost to correct. If the seller is unwilling or unable to provide the buyer with a termite clearance, the buyer may cancel the transaction.

Again, this list isn’t exhaustive, but represents just a few of the many contingencies that may be negotiated between the buyer and seller.

Here’s What Our Clients Say

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"My wife and are in the military and needed to short sale our home. We had gotten several months behind on our payments and because I have a security clearance we could not risk a foreclosure. First Residential counseled with us and informed us about the best ways to protect my clearance. We followed their advice, sold the property and had no employment related problems. They did what they said they would do and delivered the outcome that was promised. We highly recommend them."

-S. Cohen / La Mesa, CA

FAQs - Frequently Asked Questions

My wife and I are new to the area and we’ve been driving around on our own, do you have a list of San Diego neighborhoods and zip codes?
Yes. Click here to get the list of San Diego neighborhoods and zip codes.
Do you have a list of new homes in San Diego?
Yes. Click here and you’ll be directed to our San Diego New Homes Directory (you can also access the San Diego New Homes Directory under the Buyers tab on our navigation menu).
Can you provide a list of homes for sale in San Diego?
Providing a list would be impractical. At any given time there are thousands of homes, condominiums and townhomes for sale in San Diego county (currently it’s about 9,000). In the alternative we invite you to use our Home Search feature. It’s the green icon at the top of the page that says, you guessed it, Home Search. Enter your desired search perimeters and the search engine will yield results tailored to your needs. It’s our version of the San Diego MLS, except that it’s nationwide.
Where might I find San Diego condos for sale?
You would search for condos using the same Home Search feature that you’d use to find a single family detached residence. It’s the green icon at the top of the page that says Home Search. Enter your desired search perimeters and the search engine will yield results tailored to your needs. It’s our version of the MLS San Diego MLS and offers users a broad selection of San Diego real estate, along with the option to search by map.
I’ve obtained a list of San Diego homes for sale, but notice that some of the listing prices are “value ranged.” What does this mean?
This is a common phrase in San Diego real estate. A Value Range listing simply means that the seller will entertain offers between a certain dollar range, for example, from $369,000 - $399,000. It gives the buyer a frame of referenced as opposed to a firm asking price.
What’s a short sale on a home?
A short sale occurs when a lender agrees to lower a loan balance at the request of the homeowner. The homeowner sells the property for less than the amount owed, and turns over the proceeds of the sale to the lender in full satisfaction of the debt. The lower payoff has to be negotiated and formally approved by the lender in advance of the sale. The formal negotiation of a short sale approval is conducted through the bank's loss mitigation department.
What are the benefits of a Short Sale?
There are numerous benefits to short selling your home, including, but not limited to:

There is no cost to the homeowner

Short Sale experts negotiate with the bank on your behalf - you relax

The homeowner retains the dignity of selling their home vs. the humiliation of a foreclosure

There are no mortgage payments to make during the short sale process, unless you choose to make them (3-12 months)

Under certain circumstances another home can be purchased immediately - (this is much sooner than you can buy after a foreclosure)

In most instances homeowners will be able to buy another home in 1 - 3 years

There is limited damage to the seller’s credit profile (an entry of “Settled” vs. “Defaulted” or “Foreclosure”)

The seller will likely qualify for some type of CASH, up to $3,000 or more, at the short sale close to help them move

The homeowner can typically rent a comparable home for much less than their former mortgage payment

Most lenders do not require the seller to be behind on payme

CA Senate Bill 458 requires forgiveness on all debt after a short sale in CA (subject to a few exceptions)
What Is The Short Sale Process?
Before the lender agrees to lower a loan balance so the homeowner can sell an underwater home, a series of requirements must be fulfilled. The fulfillment of the lender’s requirements, along with the preliminary steps that must be taken by the homeowner and real estate agent is known as The Short Sale Process. For a detailed discussion of The Short Sale Process, please click here to go to our Short Sale Process Page.
What Is The Short Sale Process For Buyers?
If a buyer wants to buy a short sale listing (a listing on which the lender must approve a short payoff), the process is substantially the same as buying a property that’s a traditional listing - with a few exceptions: 1) On a short sale purchase the closing date is inexact because neither the buyer nor the seller has any control over when the short sale lender approves the short sale; 2) The timeframe for contingency removal does not typically start until after the written short sale approval has been issued; 3) Usually the buyer is not required to place their Earnest Money Deposit into escrow until the written short sale approval is issued by the lender; 4) The buyer, seller and buyer’s lender must agree to the terms of the short sale approval; and, 5) All terms of the Purchase Agreement are subject to lender approval, including concessions requested by the buyer.
Can A Foreclosure Affect My Security Clearance?
Yes! If you are eligible for access to classified information (i.e. require a security clearance) your credit profile can typically be reviewed at any time - prior to or during employment. Of course the inquiry into your credit profile is made by the appropriate governmental agency. In a 2007 review of the reasons for Security Clearance Denial or Revocation, DOHA (Defense Office of Hearing & Appeals) reports that about 50% of denials involved “financial considerations.” This could mean a number of things, including unexplained affluence, delinquent debt, and yes, foreclosure. Why was there an inability to pay the mortgage and why did the foreclosure occur? Is this evidence of addictive or compulsive behavior? Is there a gambling or a chemical problem? What is the employees state of mind (why undergo the humiliation of a foreclosure when the dignity of a short sale is available). Our experience has been that a short sale is a better option, especially if management is informed of the decision to short sale BEFORE the transaction occurs. If your security clearance may be at risk we strongly urge you to speak to one of our seasoned short sale agents. You’ll benefit from our years of experience.
What Is A Strategic Default/Short Sale?
A strategic short sale occurs when a homeowner decides to sell because it’s in the best long term financial interest of his or her family. For example, assume a homeowner is 49 years old and purchased a home in January of 2009 for $850,000. The property has a current value of $520,000 - a devaluation of $330,000 or 39%. When purchasing the property the homeowner obtained 100% financing consisting of an 80% first for $680,000, with a 5.99% interest rate, and a 20% second for $170,000, with a 8.25% interest rate. The payment on the first is $4,072.57. The payment on the second is $1,277.15. Taxes are $885.42 and insurance is $92.47 per month. As such, the total payment is $6,327.61 per month on a property that is $330,000 upside down. Moreover, it’s highly unlikely that the market value will ever see $850,000 again. When the homeowner considers the stark reality, one can easily understand how they’d come to the conclusion that paying $6,327.61 per month on a property that $330,000 upside down is not in their family’s long term financial interest.
Do I qualify For A Short Sale?
Each seller’s circumstance is unique and short sale qualification has to be considered on a case-by-case basis. However, as a general proposition you’re likely to qualify for a short sale if the following factors exist: 1) You owe more than the property is worth; and, 2) A significant financial event (aka hardship) has occurred since you obtained the loan that now makes it more difficult to make the payment. There is no category of hardship that’s excluded from consideration as long as there’s a credible impact on the seller’s finances. Examples of significant financial events would be a substantial decrease in household income or a substantial increase in household expenses or upward adjustment in the seller’s mortgage payment. In addition, significant financial events also include a job loss, job transfers, cut backs on hours, decrease in disability or social security payments, divorces, medical expenses, care for ailing parents or children, major diminution of the property’s value (such that cost to cure is impractical), etc. Note : These are general guidelines and there are exceptions to each of these rules. For example, we’ve closed numerous short sales where there was no financial hardship. Please take a moment to speak with one of our seasoned short sale agents. You may be pleasantly surprised.
Can I Get A VA Loan After A Short Sale or Foreclosure?
Yes! The general rule is that a buyer seeking VA financing must wait a minimum of two (2) years after they’ve had a short sale. There is an exception that permits a shorter waiting period under some circumstances. If you want additional information about this highly nuanced exception, please submit an inquiry via the Contact Us button at the top of the page.
Can I Buy A Home With FHA Financing After A Foreclosure or Short Sale?
Yes! For years FHA’s guidelines prescribed a three (3) year wait period after foreclosures and bankruptcies (with an exception for those who short sold because of employment relocation where commuting would be impractical - Mortgagee Letter 09-52). With FHA’s Back To Work Program, potential buyers with prior foreclosures, bankruptcies, short sales, deed-in-lieu, loan modifications and forbearance agreements may only have to wait one (1) year! The Back To Work Program has certain restrictions. Please call for additional information.
My husband is Active Duty Military and recently received a PCOS/San Diego. I’ve gone online and looked at homes near Camp Pendleton, but none of them contain all the features we’d like. When we find a home we like, it’s already sold. Is there a way we can be informed when new properties come on the market?
Yes. First of all congratulations on your husband’s Permanent Change Of Station being San Diego! We have a Free service called Listing Notification. To set up Listing Notification, simply give us a call or reach out via the Contact Us icon on the top of the page. You’ll provide your search parameters and email address. Whenever a new listing that falls within your search parameters is added to the Multiple Listing Service you will be promptly notified by email. In addition, if there is a change to a listing that you previously received you’ll be notified. For example, if you were previously sent a listing on a home that was priced at $400,000 and the price is reduced to $375,000 you’ll receive an email notifying you of the price reduction. Emails are typically sent within minutes of the listing input or revision.
What is escrow?
Escrow is simply a neutral third party whose task is to make sure everyone receives what they’re contractually entitled to. In an effort to make the concept easier to grasp, let’s consider a transaction that’s less technical than real estate (and one that most of us have experienced at least once). Assume you’re selling a car for $5,000 and you’ve secured a buyer who’ll pay that price. Further assume that you’ve hired an escrow company to handle the transaction and escrow is charging $75. Here’s how the transaction would proceed: 1) You would sign over the title of the car to the buyer and deliver the executed title, along with your share of the escrow fee to the escrow officer (and if applicable, the Bill of Sale; 2) The buyer would deliver the $5,000 purchase price to the escrow company, along with their share of the escrow fee, appropriate taxes, transfer fees, and Proof of Insurance; 3) The escrow officer would forward the taxes, transfer fees and transfer forms to the CA DMV - thereby assuring that the vehicle is no longer in your name and you’re no longer liable for any misadventures; 4) Escrow would forward you the $5,000 as payment for your car; and 5) Escrow would pay themselves the $75 as agreed. Notice that everyone gets what they bargained for (including the state of California), everyone is protected (including the citizens of California), and the transaction is closed in accordance with California Law. This is why mortgage lenders require that we use an escrow company.
What is title insurance?
The title company insures that no other individual or entity has a right, lien or claim to the home you’re buying. Stated another way, the title company determines, and insures that your rights and interests to the property are clear. Prior to a policy being issued, the title insurance company completes extensive research into relevant public records, maps and documents to trace ownership of the property and confirms that no one other than you will have an interest in the property. Subsequently, if someone contests your title in a legal action, the title insurance company will defend the title at no expense to you, or if there is a title defect that cannot be eliminated, the title insurance company will protect you from financial loss - up to the amount of the policy.
Why should I get a home inspection?
For your protection! When buying a home you want to have a good idea as to what you’re getting. This requires due diligence. A home inspector will investigate the home’s structural components and systems, such as:

Structural elements, foundation, framing etc

Plumbing systems

Electrical systems

Roof

Cosmetic condition, paint, siding etc

This investigation will help reveal problems with the home so that they may be addressed BEFORE the deal is closed. If there are items of concern, this is the time to discover them.
What is an appraisal?
An appraisal is a written estimate of a property’s market value completed by an appraiser (the appraiser is a licensed and insured objective third party whose job is to give their professional opinion regarding the market value of the home). The value is based upon a market analysis of recent sales prices for similar properties in the area, and the property’s physical condition.
How does an appraisal differ from an inspection?
The inspector’s job is to determine the condition of the property and the appraiser’s task is to assess the property’s value.
How long does it take to find a home and close escrow?
The typical escrow closing in San Diego County takes 30 - 60 days. (Short sales tend to take longer because we’re waiting on the bank’s loss mitigation department). Please understand that this is 30 - 60 days after you’ve found a home you desire, made an offer, and the offer is accepted by the seller. So let’s assume it takes about 30 days to find your home and there’s a 45 day escrow. Start to finish you’re looking at 75 days. Can this be done in less time? Absolutely. Last year we had a client moving to San Diego from Quantico, Virginia. He and has wife flew in on a Friday morning and left Monday at noon. On Saturday we showed them 8 properties and another 8 homes on Sunday. They elected to make an offer on 3 of the 16 homes. One of the offers was accepted and we closed escrow in 21 days. Start to finish-25 days. This isn’t typical, but it can be done
How much will it cost to buy a home?
When buying a home there are several expenses you’ll face : Down payment, closing costs, good faith deposit, appraisal fee and inspection fee (also note that some lenders will charge an upfront credit report fee). Take a look at how this all breaks down : Down Payment : Generally speaking, in today’s economic climate, you can expect to pay anywhere from 0% - 20% or more in down payment. However, for the purposes of this illustration we’ll assume a 3.5% down payment (the statutorily required down payment on an FHA loan). Closing Costs : are direct and third party costs that must be paid in connection with your loan and typically include the following: Lender origination fees, discount fees (i.e., fees paid in exchange for a lower interest rate), appraisal fees, credit report fee, escrow (settlement) fee, title insurance fees, notary fees, recording fees, underwriting fees, and impound deposits, etc. Nationally, closing costs are estimated to be 2% - 5% of the loan amount. For the purposes of this illustration, let’s assume your closing costs will amount to 2.25%. Earnest Money (Good Faith Deposit : When a buyer makes an offer on a home, the seller will ask for a Good Faith (Earnest Money) Deposit. The earnest money deposit shows that a buyer is sincere, determined, and is acting in good faith regarding the purchase of the seller’s home. The earnest money deposit is usually about 1% of the purchase price. It’s important to note that the earnest money deposit is not additional funds required to close, instead these funds are credited toward the buyer’s down payment and closing costs at closing. For example, assume you’re buying a $100,000 home and the down payment is 3.5% or $3,500. Further assume that when escrow is opened you deposited 1% of the purchase price ($1,000) in earnest money. At closing you’ll only need to deposit an additional $2,500 toward your down payment (you’ll already have a credit of $1,000 because of the earnest money deposit). Appraisal : Part of your closing costs will include the fee for an appraisal. The appraisal fee, depending on the transaction is typically $350 - $550, with most appraisals in the $350 - $400 range. The appraisal is an advance out-of-pocket fee that must be paid at the time the appraisal is ordered. Like the earnest money deposit, the appraisal fee is not an extra cost, but rather quoted as part of your total closing costs. Inspection Fee : The inspection fee is paid to the home inspector who prepares a written report for your review after investigating the condition of the home. Inspection fees are based on property type and square footage and usually range from $200 - $500. We’ll assume an inspection fee of $325 for this illustration. The inspection fee is not quoted as part of the closing costs unless an inspection is required by the lender. So, assuming you’re buying a $100,000 home, here’s the amount of cash you’d need :

* Can you buy a home with lower costs and lower percentages? Yes! There are loan programs that require less down (VA and other programs). In addition, your lender has ways of reducing out-of-pocket expenses, and if asked, the seller will often agree to pay part (sometimes all) of your closing costs. Give us a call and tell us what you have to spend. You’ll be surprised at what we can do.
Will I qualify to buy a home?
On its face this question seems simple enough, but depending on the circumstances we can really get into the weeds. For the sake of FAQs on this site, set forth below are general guidelines (again, general guidelines). In qualifying to purchase a home, there are four things to consider: Cash to close, income, debts, and credit. Let’s take the last issue first. As a general proposition a middle credit score in the 640 - 660 range will qualify you for the 3 most common loan programs, Conventional, VA and FHA. Of course you can qualify for financing with lower scores (and there are some loans that may require scores that are higher), but generally speaking 640 - 660 will get you in the kingdom. Of course there’s plethora of other assumptions at work here (no unpaid liens, no bankruptcy within the past 2 years, etc). Stable, sufficient, verifiable income is also required with no major employment gaps. Gaps must be explained and should not have resulted in a failure to meet financial obligations. As is the case with all underwriting guidelines there are exceptions as well as supplemental rules for certain situations. Debts are evaluated in relation to income to determine a debt-to-income ratio. This is a key component of mortgage loan risk assessment. For example, assume your monthly gross income is $5,000. Generally speaking, the maximum debt permissible is about 42% of your income. Debt is defined here as revolving and installment payments (those items appearing on your credit report) along with your mortgage payment (principal, interest, taxes and insurance-also mello roos & homeowner fees, if applicable). Consequently, no more than $2,100 of the $5,000 monthly income can be allotted for repayment. If your current bills and proposed mortgage payment exceed this amount you may not qualify. Again, this is a general guideline. There are some circumstances in which FHA and VA may allow you to go a little higher than 42% and some instances where conventional financing my insist that the DTI ratio is a little less.
When should I give my landlord the 30 day Notice?
As technical as real estate can get, interestingly enough, this is one of the most difficult questions to answer. It seems like a no brainer on the surface-just give the 30 day notice 30 days before escrow is scheduled to close. Unfortunately, it really isn’t that simple. The key phrase here is 30 days before escrow is scheduled to close. Unfortunately, escrow does not always close when scheduled. In fact, if you speak with any escrow officer they they’ll tell you that 50% or more of escrows don’t close on the date specified in the Purchase Contract & Escrow Instructions. And it doesn’t mean that anyone did anything wrong or any party to the contract failed to perform. In 20+ years we’ve learned that every transaction has a glitch-sometimes it’s a major glitch and sometimes it’s minor. A glitch in this instance is simply a problem that arises that must be solved before escrow can close. The timeliness of the resolution often depends on the skill of the problem solvers. Sometimes the solution is simple. Perhaps the termite inspector forgot to note on the termite report that the property is free of visible infestation. Correct, sign and re-submit. A slight delay ensues, maybe 24 hours. But other problems can be far more complex. Remember, it takes an army of people to facilitate a real estate closing—appraisers, inspectors, underwriters, doc drawers, insurance brokers, title officers, escrow officers, loan officers, government agencies, selling brokers, listing brokers, buyers, sellers, lawyers, etc. As you can see, with this many hands in the fire there are ample opportunities for things to go awry. Unfortunately, this is the nature of the beast. This doesn’t even take into consideration those factors outside of everyone’s control. Consider the following: 1) A brand new vacant home was severely vandalized during the last week of escrow and the condition was unknown until the buyers did their final walk through 2 days before closing. A 2 week delay ensued (windows and new granite had to be ordered and installed). 2) On the Friday our buyer’s loan was to fund, the lender’s system went down and no wires could be sent. The problem was not resolved until Wednesday morning of the following week. 3) On the morning of the closing a water main burst two doors down from the subject property and flooded the lower end of the street, damaging the first level flooring and drywall. 4) The week before closing a major lien arose against the seller (this lien did not appear on the preliminary title report). Escrow still closed, but it was six and a half weeks later-when the lien was withdrawn after an audit by a government agency. So yes, you have to submit the 30 day Notice, but explain the complexity of the matter and ask the landlord to give you some wiggle room. Clearly, you don’t want to have payment overlap, but try not paint your self into a corner wherein you tell the landlord you’re closing on the 29th and vacating by 5 P.M. on the 30th, with the landlord scheduling a carpet cleaning on the night of the 30th, and a new tenant is scheduled to move in on the morning of the 1st. Don’t do this!!! If there is a single hiccup, and often there is, you may find your self standing there at 5 P.M. on the 30th with two eighteen-wheelers full of furniture and no where to move. It is imprudent to cut it this close. In submitting your 30 day Notice, save yourself some grief by leaving yourself some room to breathe.

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About San Diego

San Diego is one of the fastest growing cities in America. Boasting a population that exceeds 1,300,000, we’re the 8th largest city in the U.S. and the 2nd largest in California. Of course, arguably, we have the most beautiful city anywhere.