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Kary L. Krismer's Blog

By Kary L. Krismer | Broker in Renton, WA

No Legal Description? One Possible Solution!

It's Saturday afternoon and you're writing an offer on a brand new listing which does not yet have legal description attached.  Looking at the county recorder's website, the owners have owned the property for over 20 years, so you can't even get a copy of a prior deed.  The agent is out of town and cannot send you the legal description.  What do you do?

This is a tip from Annie Fitzsimmons' Core class which I addressed here.  It turned out it was very timely advice, because within one week of taking her class, I ran into the situation described.

In the past when I've had a listing where the buyer's agent didn't attach the legal description for an offer on one of my listings, I would use the counteroffer form with a provision that said:  "The legal description is attached hereto" or some similar language.  The reason I would go that route is just sending a legal back to the buyers to initial arguably (probably) does not make the legal description part of the purchase and sale agreement.  I didn't want to take that risk.

What Annie Fitzsimmons suggested is that when you face the situation as a buyer's agent, that you send along a counteroffer form which says the legal description is attached, and then send that counteroffer form with your offer to the listing agent so that they can then attach the legal, have their client sign the counteroffer form (hopefully with no other changes), and then return it for your client's signature.  While there are other possible solutions, this is the one I consider the most ironclad.  I will note, however, that other solutions might get you to mutual acceptance earlier if your offer's terms were exactly what the seller wanted, so there are possible downsides.

Why is this important?  An offer without a legal description is void!  Either party can back out up until the time of closing, even if all contingencies have been waived.  Even the seller could back out if they wanted to.  The goal in reaching mutual acceptance is to have a binding contract, and without a legal, you don't have one!  A buyer could pay for an inspection, an appraisal, and give notice on their apartment, only to have the seller refuse to close without any risk of legal liability.  A seller could have their unit tied up for 60 days, and have to give the earnest money back to the buyer. And if that's not enough motivation, neither agent would get paid!  Bad results all around, except for the party that wanted to back out.

Note:  A legal description does not need to be attached to a condominium purchase and sale agreement.  Form 28 doesn't reference a legal description or Exhibit A.  Instead Form 28 references the condominium declaration recording number, along with the number of the unit (and if necessary, and parking space).

Disclaimer:  This piece is not intended to give legal advice.  To obtain legal advice the reader would need to consult their own attorney. The purpose of this piece is to give agents one possible solution to a problem, but the solution is not the only possible solution, and might not be the best solution in all situations.  Another option for agents is to consult with their designated or managing broker.

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