November 12th, 2018 at 2:43 pm

Question: We are the buyer’s agent for a pending sales transaction with a 45-day escrow period. Our buyer plans to take title to the property as a married woman as her sole and separate property. Her husband is on active military duty in the Middle East.

We just received a 3-page standard form Addendum from the listing broker. The boilerplate language states in relevant part as follows:

Purchase by One Spouse. If one spouse is purchasing the subject property as his or her sole and separate property, the other spouse shall sign appropriate documentation consistent with the party spouse’s agreement within 10 calendar days after acceptance or Seller shall have the right to cancel at his or her sole discretion with written notification to Escrow Holder.

Should our buyer agree to this provision?

Answer: Probably not, unless revised. If the buyer is already in a contract with the seller that says nothing about the buyer signing the listing broker’s Addendum, the buyer is not obligated to sign the Addendum. However, it’s true that both the buyer’s lender and the title company will require that the buyer, before close of escrow, provides a quitclaim deed signed and notarized by her husband releasing any interest he may have in the property. The military should have notarization services available for its active duty personnel.

The issue, however, is the timing. The buyer is likely to want to do all her inspections, negotiate repairs, and get her loan approved, before asking her husband to sign a quitclaim deed. The “10 calendar day” deadline should be more like 30 days. The buyer may also prefer that the seller be required to deliver to the buyer at least a 2-day Notice to Buyer to Perform before cancelling, rather than a “written notification to Escrow Holder” as stated in the Addendum.

-Thank you to Kellye Patterson (Ventura Office) for suggesting this week’s legal tip.

-Happy Veteran’s Day! We honor all the brave men and women who served our beautiful country.

Copyright© 2018 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 November 12, 2018. 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.

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