Multiple Choice Question: On Wednesday, April 13, 2022, a buyer enters into a contract to purchase a property using C.A.R.’s Residential Purchase Agreement (RPA). The buyer agrees to a 10-day contingency period for all contingencies. When does the buyer’s 10-day contingency period end? Pick the best answer:

A. Saturday, April 23, 2022, which is 10 days later.
B. Sunday, April 24, 2022, because you don’t count April 13, 2022 or the date of acceptance.
C. Monday, April 25, 2022, because you don’t count weekends.
D. Tuesday, April 26, 2022, because you don’t count weekends or holidays. 

Answer: Answer A is the correct answer. The buyer’s 10-day contingency period ends 10 “Days after Acceptance” (see paragraph 3.L. of the RPA). “Days” are defined as calendar days (see paragraph 25.J.). Also, when “Counting Days” after Acceptance, you do not count the first day (see paragraph 25.I.).

Answer B is half wrong. The explanation is correct, because you should not count April 13, 2022 or the date of acceptance. However, the date in Answer B is wrong. Ten days after April 13, 2022 ends on April 23, 2022, not April 24, 2022.

Answer C is wrong. The RPA says in pertinent part as follows: “if the Scheduled Performance Day for any act required by this Agreement, including Close of Escrow, lands on Saturday, Sunday, or legal holiday, the performing party shall be allowed to perform on the next day that is not a Saturday, Sunday or legal holiday” (see paragraph 25.I.).

Yet, in our situation, April 23, 2022 is not a “Scheduled Performance Day for an act required by this Agreement.” The buyer is not required to do anything on April 23, 2022. The RPA specifically states under “Continuation of Contingency” in paragraph 14B(4) that, even after the contingency period ends, the buyer’s contingency period simply continues on, until the buyer removes such contingencies or cancels.

If, however, the seller were to serve the buyer with a Notice to Buyer to Perform (NBP) to remove contingencies, then the way we would be “Counting Days” would change. If the seller serves a 2-day NBP on April 21, 2022, for example, the buyer would be required to remove the applicable contingencies before the end of the 2 days, otherwise the seller can cancel (see paragraph 14C(1)). Hence, upon service of the NBP, the end of the 2-day timeframe does become a “Scheduled Performance Day for an act required by this Agreement” under paragraph 25.I., and the last day cannot fall on a weekend or holiday.

Answer C cannot be the correct answer because, in our fact pattern, no NBP has been served. Also, the question posed was when does the 10-day contingency period end, and not what is the earliest date that the buyer may be required to remove contingencies.

Answer D is wrong. Monday, April 25, 2022 is not a legal holiday.

-Thank you to Jill Witte (Laguna Beach Office) for suggesting this week’s legal tip!

Copyright© 2022 Berkshire Hathaway HomeServices California Properties (BHHSCP). All rights reserved. Any unauthorized reproduction or use of this material is strictly prohibited. This information is believed to be accurate as of April 18, 2022. It is not intended as a substitute for legal advice in individual situations, and is not intended to nor does it create a standard of care for real estate professionals.