It's All Negotiable

I recently advised a client concerning a real estate purchase. My client had signed an offer to purchase many months ago, but the seller was under water with his lender and was trying to negotiate a short sale. The seller’s real estate broker wanted my client to sign a new offer to purchase, giving the seller another 60 days to complete the short sale negotiations. But my client did not want to delay for another 60 days. So I told the broker that my client would not sign another offer to purchase unless we saw some concrete progress toward completing the short sale. The broker and seller did not want us interfering in their negotiations with the lender, and did not want to show us the seller’s financial documents. But when I told the broker of my client’s concern with the length of time for completion specified in the offer for completion of the short sale approval, they came back with a revised proposal for 20 days. That was acceptable to my client. Now, if the seller or lender is still dilatory, my client can get out of the deal in a relatively short period of time. And the seller gets his new offer, which he says will help pave the way for approval. That may or may not be, but at least both sides now have a written offer they can live with. Sometimes, it is the seemingly small things that make a big difference.

I have said it before and I’ll say it again. When it comes to contracts, it is all negotiable. Even when one party presents a printed form, it is not written in stone. With computers, forms can be redrafted and reprinted much more easily and quickly today than when I began practicing law. That’s a good thing. People need to consider what they really want or need when making big purchases or commitments of time and money. They should not be deterred by the prospect of having to redraft some written document. Even the terms of written contracts to resolve disputes (e.g., Agreements to Mediate or Arbitrate) are negotiable—until you sign on the dotted line. So be sure you read and understand what you are signing. If you don’t, get an attorney to look it over and explain the potential pitfalls and consequences before you sign. If a dispute arises concerning the meaning or effect of the terms of the contract after you sign it, the parties to the contract can get attorneys and litigate in court, or they can agree to resolve it through arbitration or mediation, out of court.

In any event, it is wise to remember that courts are not in the business of creating or negotiating contracts for you. That is your job, with or without the help of an attorney or mediator. Courts either enforce agreements or decide that they are not enforceable. The time to negotiate is before the hammer falls. When a large amount of time, money, valuable property or assets are at stake, it is best to seek out an experienced attorney or mediator to help you.