Contract Elements

It’s important to understand the Texas real estate contract and the many elements that are negotiated. Here’s an overview of the key terms you’ll hear throughout the process of buying your Austin home.

TIMELINE TIP: Once both parties agree to the terms and the contract is signed, then either the buyer’s agent or the seller’s agent will execute the contract. Since many terms of the contract need to be completed within a certain number of days, the timeline countdown begins the day after the contract is executed, which is officially day one. The final day of any term ends at 5:00 pm Central Time.

Sales Price

The price you offer, including the cash portion for your down payment and the amount financed.

Earnest money

The earnest money is negotiated and can be 1% or more of the sales price. It must be deposited with the title company within three days.

Remember: Day 1 of the countdown starts the day after the contract is executed! If you don’t close the property and terminate the contract according to the agreed upon terms, then the earnest money is refunded to the buyer. If the property doesn’t close due to the buyer’s non-performance, then the earnest money may be retained by the seller. (This is typically when lawyers get involved)

Title company

Although a listing agent can include their preferred title company in the listing, the title company used to close the deal is negotiated between the two parties.

title insurance

State law states that there are two title insurance policies required for non-cash transactions in order to buy a house in Austin. A seller’s policy, that the seller typically pays for, and a buyer’s policy, that the buyer typically pays for; however, this can be negotiated. The cost of both policies is regulated by the State of Texas, therefore they will be the same price no matter which title company is handling the close. If the buyer pays cash for a property, then a buyer’s title policy is not necessary since it’s only required if a lender is involved.

survey & t47

An existing survey can be used for a title commitment, as long as there aren’t any additions to the property. If an existing survey is used, then the seller must provide and sign a T47 affidavit, witnessed by a notary, that states nothing has changed with the property since the survey was drawn. If an existing survey is not delivered to the buyer within the specified number of days negotiated in the contract, then a new survey is ordered. Whether the seller or buyer pays for the new survey is negotiated.

hoa transfer fees

If you are purchasing a property that involves a Homeowner’s Association, then there are typically fees associated with the transfer, including the cost of obtaining the HOA documents and resale certificate. These costs are negotiated. The documents have to be delivered to the buyer within a specified number of days as stated in the contract.

property condition

Seller’s disclosures must be delivered to and signed off by the buyer. If the notice is not available at the time an offer is written, then it’s required to be delivered within the number of days negotiated in the contract. A buyer can accept the property “As Is,” or accept the property “As Is” provided the seller, at the seller’s expense, completes specified items. Even though it’s common to check the “As Is” box when writing an offer, the buyer still has the right to do an inspection and negotiate additional concessions. Keep these steps in mind as you go through the process of buying your house in Austin.

residential service contract

The buyer can ask for the seller to pay a certain amount for a Home Warranty. Although the amount paid is negotiable, the buyer has the right to choose the Home Warranty company.

closing date

When buying a home in Austin, you have to remember that a property is considered “closed” on the date the closing documents are signed by both parties and monies are received by the title company.

Possession

Once paperwork is signed and monies are received by title, then the property is officially “closed,” and the buyer takes possession—even if the sellers don’t receive proceeds until the next business day due to a wire cutoff. If the seller needs to lease the property back for a period of time after close, then the cost of the leaseback and time allowed are all negotiated. In that case, buyer possession is after the seller’s leaseback has expired.

settlement & other expenses

The buyer can ask for the seller to pay certain closing costs, as allowed by the lender.

option fee

As part of the contract, the buyer agrees to pay an Option Fee to the seller. The Option Fee can range from $100 to several thousand dollars, depending on the price of the property. The Option Fee MUST be delivered to the seller within three days. If the buyer decides not to move forward with the purchase, then the Option Fee is retained by the seller. If the buyer goes on to close the property, then the Option Fee can be credited to the sales price at closing. Whether or not it’s credited to the close is negotiated.

option period

The Option Fee is compensation to the seller for an Option Period. An Option Period is a negotiated number of days, ranging from 0-10 days, that enables the buyer to perform due diligence on a property and helps determine whether or not they want to move forward with the purchase. In exchange, the seller agrees to temporarily take the property off the market while the buyer performs the due diligence. This includes general property inspections, reasonable access to the property at agreed-upon times and more specific inspections, including pool, roof, foundation and others. Once the buyer receives the inspection reports, then they can negotiate seller repairs, a credit toward seller repairs or a price reduction. Concessions have to be agreed to and both parties must sign an amendment by 5 pm on the last day of the Option Period. If concessions aren’t agreed to, the buyer can terminate the contract (as long as it’s before the Option Period ends) and is entitled to an earnest money refund. If, however, the buyer terminates, the seller retains the Option Fee.

third-party financing

If you get a loan to buy your home in Austin, then you need to obtain both buyer approval and property approval. Buyer approval means you have the ability to pay back the loan, and property approval means the home's value matches the loan value. These two approvals must be completed within a negotiated timeframe.

non-realty items

Any built-in and permanently installed items are considered fixtures and, by contract, stay with the property. There are some items that the buyer may wish to keep, including the washer and dryer, refrigerator (not built-in), and decorative bathroom mirrors. Any of these items are negotiated and included in a non-realty item addendum. Whether or not a buyer pays for these items or they are part of the purchase price is negotiated.