Third Party Financing Addendum-IMPORTANT

The new Third Party Financing Condition Addendum

by Ron Walker

On Feb. 9, 2004, the Texas Real Estate Commission promulgated the new Third Party Financing Condition Addendum. The most significant change in the addendum lies in the last few lines of the first paragraph of the form.
Under the prior version of the form, if the buyer did not obtain financing approval within the time required, the contract simply terminated. Under the revised form, the buyer must, within the time specified, give written notice to the seller that the buyer is not able to obtain financing approval in order for the contract to terminate and for the buyer to receive a return of the earnest money.If the buyer does not give the notice within the time required, the contract is no longer subject to the financing contingency described in the addendum. This means that the buyer will breach the contract if:
• The buyer does not give timely notice of termination under the addendum;
• The buyer is not able to secure financing approval; and • The buyer does not close as required by the contract. The buyer takes the risk if he is not confident he has obtained financing approval and does not send the termination notice under the addendum in a timely manner.The term financing approval did not change from the prior form. Financing approval occurs when the buyer has satisfied the lender’s requirements related to the buyer’s ability to borrow the money (e.g., creditworthiness, credit history, income, assets).Financing approval and loan approval are not synonymous. Loan approval is the unequivocal statement by the lender that the lender will fund the loan. Two major elements must be satisfied before the lender will typically give loan approval:
• Approval of the borrower, which is financing approval under the addendum; and
• Approval of the collateral, which is the property satisfying the lender’s requirements. The contingency in the Third Party Financing Condition Addendum deals only with financing approval.With respect to approval of the collateral, paragraph 4 of the TREC contract forms provides that the contract is subject to the property satisfying the lender’s requirements. The contingency that the property satisfies the lender’s requirements applies regardless of whether there is a financing contingency.It is critical for the buyer to obtain financing approval within the time required under the addendum. Another way to refer to financing approval is to be conditionally approved for the loan. Conditionally approved means that the lender has stated that the buyer is approved for the loan subject only to the property meeting the lender’s underwriting requirements (for example, appraisal and survey). To be confident that the buyer has obtained financing approval under the addendum, the buyer may ask the lender to provide the buyer with the Conditional Approval letter promulgated by the Texas Savings and Loan Department. Mortgage brokers are required to use this letter under TSLD regulations. Copies of the Conditional Approval and Conditional Qualification letters that mortgage brokers must use are available on TexasRealtors.com.Time is of the essence with respect to the addendum. Strict compliance with the specified time period is required. Buyers and buyer’s agents will want to “watch the clock” with respect to this addendum. It may be necessary to request an amendment that extends the time under the addendum if the buyer cannot obtain assurance of financing approval from his lender.

Ron Walker is director of legal affairs for the Texas Association of REALTORS®.