Southwest Florida real estate transactions use two standardized forms of Contracts – the NABOR Contract and the FR/BAR Contract. The NABOR Contract is widely utilized in Collier and Lee County, Florida, whereas the FR/BAR Contract has become the primary Contract used across Florida. While a realtor may believe these Contracts are similar, they are substantially different. Therefore, it is crucial for a realtor transacting business in Collier and Lee County, Florida, to understand the fundamental differences. This blog will focus on five key differences every realtor should be aware of between the Contracts.
The Effective Date, as defined in the NABOR Contract, is the last date a Seller or Buyer signs or initials the Contract.
In contrast, the Effective Date in the FR/BAR Contract is the last date a Seller or Buyer signs or initials the Contract and delivers the offer or final counter-offer. The key distinction between the Contracts is that the FR/BAR Contract includes delivery when establishing the Effective Date.
Time is of the Essence:
A vital distinction between the Contracts relates to timing. In the NABOR Contract, ‘time is of the essence’ as to the Closing Date – meaning the parties receive leeway in relation to certain time periods outlined in the Contract (e.g., the initial or additional deposit) and a party is not immediately in breach upon the passing of a deadline.
Comparatively, ‘time is of the essence’ for every time period and date set forth in the FR/BAR Contract. As such, a party is in technical default if it misses a deadline set forth in the Contract (e.g., a Buyer’s deposit(s) is exposed and at risk if late).
Under the default language in the NABOR Contract, a Buyer has forty-five days to obtain loan approval, although ‘loan approval’ is not defined. If a Buyer does not waive his or her financing contingency within this timeframe, then a Seller is permitted to terminate the Contract. Likewise, a Buyer may terminate the Contract if he or she does not waive the financing contingency. However, unlike the FR/BAR Contract, no automatic waiver exists. A Buyer must waive the financing contingency in writing for his or her deposit(s) to be at risk if a Buyer cannot obtain financing.
On the contrary, in the FR/BAR Contract, the default time period to obtain Loan Approval is thirty days, and ‘Loan Approval’ is defined to include a financing and appraisal component. A Buyer’s termination of the Contract or waiver must be made within the Loan Approval Period and is effectively waived following the Loan Approval Period. A Seller does have the right to terminate the Contract within three days of the expiration of the Loan Approval Period if a Buyer has not provided Loan Approval or waived it.
In the NABOR Contract, there are six inspection items a Buyer may have inspected: (i) Systems and Equipment; (ii) radon gas; (iii) lead-based paint; (iv) termites or other wood-destroying organisms; (v) toxic or pathogenic molds; and/or (vi) open permits. Further, Defective Inspection Items are specifically defined to include: (i) Systems and Equipment not in Working Condition; (ii) radon gas at or above EPA action levels (4.0 pCi/L picocuries per liter); (iii) presence of lead-based paint; (iv) active infestation by termites and/or other wood-destroying organisms or past damage of same; (v) existence of toxic or pathogenic molds in interior exceeding exterior levels; and (vi) void, expired, issued, open, under review permits or unpermitted improvements. A Buyer must make his or her inspection election notice request for Remedial Action and/or credit within five days from the Inspection Period. A complete inspection report must accompany the election. A Seller then has ten days to accept, reject or counter and the Buyer has five days from said rejection or counter to terminate the Contract.
The FR/BAR Contract details three inspection buckets a Buyer may have inspected: (i) General Inspection; (ii) Wood Destroying Organism Inspection; and/or (iii) Permit Inspection. Of note, radon gas, mold, and lead-based paint are not automatically included. In addition, the FR/BAR Contract has Repair Limits set forth as a maximum dollar amount or percentage (1.5% of the purchase price if left blank) a Seller is obligated to address. A Buyer has to notify a Seller within the inspection period of any defective inspection items and only needs to include the relevant portion of the inspection report if the Seller requests. Generally, if the repairs are equal to or less than the Repair Limits, a Seller is to repair the items. If repairs exceed the Repair Limits, then a Seller may elect to repair, or a Buyer may elect which items to repair under the Repair Limits.
Default and Dispute Resolution:
The default provision in the NABOR Contract states that in the event of a Buyer’s default, a Seller’s sole remedy is all deposits made. Further, unlike the FR/BAR Contract, the NABOR Contract does not require mandatory dispute resolution through mediation.
Conversely, and of considerable importance, the FR/BAR Contract provides that upon a Buyer’s default, a Seller can recover and retain all deposits, whether paid or agreed to be paid.
While neither contract is objectively better than the other, nor does this blog detail all the differences between the Contracts, it is vital for a realtor practicing in Collier and Lee County, Florida, to familiarize themselves with the nuances and variances to represent a customer’s needs appropriately. As always, if you have any questions regarding these Contracts, we encourage you to consult your trusted real estate attorney.