The use, abuse, and avoidance of financing conditions is and has been a hot topic in the legal, real estate and home finance communities for some time. Over the last several years realtors and home buyers have been using fewer financing conditions when preparing offers of purchase and sale. Some buyers have benefited, and some have lost – a lot. Part of the decline was driven by the need for a competitive edge in multiple offer situations, and some of it has been driven by the notion that financing has somehow become more easy and predictable in a world of online resources and record-low rates.
In reality, financing a home purchase has never been more delicate and UNpredictable than it has become over the past three years. Since 2009 we have seen a growing burden of lending policy, a switch in qualification calculations from using discount to posted rates, a shift in appraisal values and a withdrawal of products and offers from the market. Some of the challenges facing self-employed buyers, as an example, can be found HERE.
Each of these factors can throw a wrench into your financing plans, which isn’t the end of the world if you are looking at your financing situation before you buy, but can cause a lot of stress and money if you only address it afterward. Your first defence against buying a home you can’t afford is pre-qualification, which we discussed HERE. You should also consider finding and speaking to a real estate lawyer before looking at homes. An offer of purchase and sale is a legal contract with far reaching implications. A lawyer should be able to quote you what it will cost to close your purchase, as well as provide some preliminary advice on what this (and other) conditions mean to you.
However, we know that impulse buys and busy schedules can impact your preparation, so with that in mind, let’s take a look at what a financing condition is and why you should consider including one in your offer.
A financing condition typically allows the buyer 3 to 7 banking days to obtain a financing approval from a financial institution. An example of the language used would be: “This Offer is conditional upon the Buyer arranging satisfactory financing, at the Buyer’s expense, within 5 Banking days of acceptance of this Offer, failing which this agreement shall become null and void and the Buyer’s deposit shall be returned in full, without interest or deduction. Buyer reserves the sole right to waive this condition.” The condition should state an appropriate amount of time (remember that while bank branches may be open on weekends, their underwriting centres typically are not, and some holidays apply to banks that may not apply to you, so plan accordingly) that balances your needs with the perceived (or stated) timing needs of the sellers. Once you have a formal notification or letter of financing approval that you can work with, you sign off on a waiver of the condition and the realtor advises the seller’s side.
A financing condition is important because it protects your interests and provides you a safe exit should you not qualify for financing in the manner and amounts which you intended or can afford. An important word in the condition is “satisfactory”. It implies that if you only qualify to purchase the home with a bigger downpayment, or at a higher rate, you do not have to proceed with the sale. (Never state a particular amount in the condition or qualify it in any other ways than shown above; this condition is YOUR failsafe against not being approved to finance the home). A real estate lawyer in your jurisdiction will provide the best sense of what you can or can’t do given the particular wording of the condition.
Another “pro” of a financing condition is the flexibility it provides should the property not qualify for financing. If, for example, the home is appraised well below the purchase price by the lender, the financing condition allows you to accept the bank’s decline at the figures you requested, OR to try to make the deal work before walking away from it (asking parents for a gift to help with the deposit, bringing on a guarantor, etc.). Short appraisals are becoming more prominent as banks look for ways to tighten lending without hiking rates, and can be extremely difficult for borrowers to handle if they do not have the savings to manage it. We discussed short-appraisals and provided a financing example HERE.
(Keep in mind that a bank may approve your purchase conditional on an appraisal that may not happen until after the condition expires; in this situation, you must either be willing to accept the risk that the appraisal will come in on target and/or that you can handle it if it comes in short, OR deem the approval “unsatisfactory” and request your deposit back. Again – speaking to a mortgage specialist BEFORE you buy is the best way to prepare for this eventuality)
Remember that a financing condition in the contract does require you to formally and in good faith seek financing approval; don’t think you can just cite the condition if you get ‘cold feet’ or find a home you like better. Unless you can demonstrate that you sought out but were not approved for financing on terms you could afford, you may be sued for breach of contract.
Financing conditions are particularly important if you are planning on buying a property that needs extensive repairs or renovations, since the current value of the property (and the potential value of the renovations you plan to do) may be difficult to determine. Buyers thinking of acquiring “purchase plus improvements” financing should always talk about their finance plans before making an offer and should consider getting any contractors in line before making the purchase so that they can see and estimate the work within the condition period.
If you do NOT include a financing condition and cannot get approval to finance the property, the problems are serious and potentially very expensive. If you cannot get approval at a “tier 1″ lender, you may have to go to the secondary or private market for full or partial financing, which can cost you in terms of interest rates (12% instead of 4%, for example) and set-up fees. If you are unwilling to incur those costs or nobody is able or willing to lend on the property (because of its price, a zoning infraction, urea formaldehyde insulation, knob-and-tube wiring, etc.) you may have to surrender your deposit, but you may not be able to get out of the deal. Before getting caught up in a bidding war, speak to your realtor or lawyer and find out what the “worst case scenarios” are if you buy unconditionally.
Because it protects the buyer’s interests, the financing condition can be portrayed as having “cons” as well. An offer with a financing condition may get dismissed out of hand in a multiple offer situation, even if the price offered is the one to beat, simply because the seller or their realtor don’t want to risk a deal falling through. A financing condition that is longer (7 days instead of 3, for example) may also convey risk that the seller or their realtor don’t want to engage. Bear in mind, however, that both of these perceived “cons” impact the seller more than the buyer; a financing condition is about YOU and your ability to get financing for the home you want to buy. Winning a multiple offer situation and then having to re-sell the property six months later because you can’t afford it (or had to get private financing to mortgage it) is not, in our opinion, worth the cost or the risk.
We understand that, in many real estate markets, affordable properties attract multiple offers and serious competition among buyers. That is why our first recommendation is to always get preapproved for financing BEFORE you go looking for homes. Whether you are a first time buyer or an investing in a rental property, preapproval sets parameters for you to work with and raises red flags before you are tied up in a contract. That said, nobody should be afraid to use a financing condition when purchasing real estate. It affords protection and flexibility for YOU and your family.
If you are thinking of buying real estate, speak to a qualified financing specialist first so you are properly prepared to proceed. When it comes time to make an offer, make certain that a financing condition is discussed with your realtor. Consider speaking to a lawyer so you know your rights and obligations. And finally, whether or not a financing condition is included is your choice, make sure you understand the implications of the condition and contract so you understand how including a financing condition (or not including it) will affect the offer, its acceptance, and your ability to close the deal.