Wednesday, August 7, 2013

Amendment or Addendum???

Good for you and your REALTOR® to know!

Po - tah - to

Traditionally an addendum is used as an additional page to the printed contract pages of an contract of purchase and sale for any conditions, terms, inclusions, etc that need to be included as a part of the negotiated transaction.

Once a contract is accepted – any changes or additions to the terms or agreement are to be done on an amendment – it is changing/amending the already accepted offer.

The amendment is different from the addendum as it has pre-printed wording that are very important statements;  

“For good and valuable consideration…”  

and at the bottom...

“All other terms and conditions contained in the said agreement remain the same and is full force and effect.  Time shall remain of the essence.”

The key point is timing – 
Putting additional information or terms into a contract BEFORE it’s accepted is much different than making changes or additions to a contract AFTER it has been accepted.  

At contract law, reopening the contract can be dangerous – giving either party an opportunity to walk away from the previously agreed transaction as changes after an acceptance can be interpreted as a renegotiation of the deal. New “consideration” is required at contract law to have a binding agreement – that consideration is usually the deposit we take but more accurately it is the agreement between the two parties.  When information is being changed or added to an accepted offer – contract law asks 
– what is the ‘consideration’ for this new agreement – thus the amendment form addresses that with “For good and valuable consideration”.   You should add, “The Buyer and Seller agree” , then enter your changes “from…. To ….” Or add any additional information the parties wish to have included.

ALSO – it’s imperative that there is no ambiguity to the changes where parties may interpret those changes to be replacing something already agreed to – thus  “all other terms and conditions remain the same” – is important. 
Lastly, “time is of the essence” is an important statement at contract law – meaning that if parties do not meet the time boundaries placed on them, the contract can be null and void.  Once again, when changes are made to an accepted offer, restating that ‘time remains of the essence” supports the enforceability of the contract should it ever be challenged and places the same fundamental contract requirements on the parties for these additional agreements on the amendment. 

My way to remember is:

  • Addendum (ADD) is adding pages for more room to write in the contract.  
  • Amendment (to Amend) is changing an already agreed contract.

You can most certainly use an addendum rather than an amendment form after acceptance but your REALTOR®  MUST remember to include the pre-printed statements in order to ensure the enforceability and integrity of the contract for all parties in the contract.  

This certainly shows you  how important it is to have a well educated and prepared REALTOR® on your side when buying or selling a home.  

When the going gets "Tough"...just call me.
Susan Tough

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