In our area, Homeowners’ Associations and Condominiums generally require each Buyer to file an application for Board approval. Failing to apply would be a huge mistake, resulting in the attorneys focusing on who was responsible for the delinquent application and, potentially, the failed closing. But PAY ATTENTION, NABOR and FR/BAR allocate this risk differently.
And do you think the Realtor’s can avoid the blame? Usually not, as the Customers will assert the Realtor should have explained the process better, and kept track of the process. No surprise that the messenger bears the blame!
Let me review the contract differences.
NABOR
Standard J – Association Provisions; Membership Approval. The Buyer must apply for membership approval, if required, not later than ten (10) days after the Effective Date of the Contract. If the Buyer files within the ten (10) days, and no written approval has been obtained by the closing date, then either party can cancel the contract.
However, the Buyer’s right to terminate is subject to his filing of the application on time. In other words, the Buyer would lose their Deposit pursuant to Standard J if they did not apply in the first ten (10) days.
The Seller, on the other hand, loses the right to terminate under Standard J if there are any violations of the Association governing documents, or if there are past due balances due to the applicable Association.
Lastly, NABOR specifically makes the Buyer responsible for securing membership approval, placing no additional obligations on the Seller.
FR/BAR
FR/BAR handles the approval process quite differently.
Comprehensive Riders A & B (Condominiums and HOAs, respectively) require the Seller to “initiate” the approval process.
Lawyers debate the meaning of “initiate” in this context. Is a phone call or text to the Selling agent enough? Does the Seller, via his listing agent, have to send an actual application to the selling agent for his Buyer? Regardless of the interpretation, a safe procedure is for the Seller to supply the Buyer with the application and contact information for the property manager. Successfully closing the deal is the primary goal, but blame becomes relevant when the deal begins to fail.
But it doesn’t end there! Each Rider also requires both the Buyer and Seller to “use diligent effort to timely obtain Association approval”. What constitutes diligent effort? The financing contingency in FR/BAR defines it as “includes, but is not limited to, timely furnishing all documents and information required by Buyer’s mortgage broker and lender and paying for Appraisal and other fees and charges in connection with Buyer’s application for Financing.” Using this language as guidance would suggest that the Buyer and Seller should apply early, supply all relevant documents in a timely manner, and follow up regularly.
Practice Tip #1. The Listing Agent should always supply the application whenever an association exists. Successful Realtors oftentimes monitor both sides in the transaction, ensuring that there are few surprises. Getting the transaction closed and keeping your customer happy is the ultimate goal.
Practice Tip #2. Make sure you use Comprehensive Riders A & B, when appropriate. These Riders are frequently overlooked (i.e. Forgotten!) when Realtors use a FR/BAR contract after previously only using NABOR. The Florida Statutes require certain language in the contract for Condominiums and HOAs. NABOR already contains the requisite language, FR/BAR only has it in the Riders.
These particular issues occur more frequently than you may imagine. Missing Riders have recently jeopardized several transactions at Ross Title, and will likely happen again. Adding this one simple step could avoid major problems.
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