The federal Homebuyer Tax Credit is applicable if both parties enter into a "binding contract" to buy a principal residence on or before April 30, 2010 and close on the home by June 30, 2010. What's the definition of "binding contract" in terms of real estate practice in MA?
In MA, two contract documents are typically used in a home sale - an Offer to Purchase, followed by a Purchase and Sale (P&S) agreement. Is an Offer to Purchase signed by both parties a "binding contract" which meets the 4/30 deadline? Or must a Purchase & Sale Agreement be signed by 4/30? (provided that closing takes place by 6/30 in either case, of couse). It is not uncommon for weeks to elapse between Offer and P&S.
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Editor's Response
Interesting question. As you probably know, if certain conditions are met a purchase and sale agreement is considered a binding contract under Massachusetts law. I do not know how the legislation creating the home buyer's credit defines a binding contract, but the comment below offers some good advice on that issue. As always with contract interpretation, the intent of the parties will control. And the best way to demonstrate that intent is by using specific language. For more information or to post a question, visit our Massachusetts Real Estate Law Discussion Forum.
Offer should be binding
As the Editor suggested, a written Offer to Purchase is a binding contract in Massachusetts if certain conditions are met, such as acceptance of the offer by the seller, intent of the parties to be bound by the offer, and inclusion of material terms in the offer. Many standard offer forms will include language such as "this is a legal document that creates binding obligations." Additionally, most offers will contain many of the provisions of a P&S agreement, such as inspection and mortgage contingencies, that will merge into the P&S. If you are nearing the deadline of the tax credit, your attorney should include clear language that, once the offer is accepted, the buyer and seller are entering in a binding contract. Even better, I would suggest that instead of "Offer", your attorney should title your initial contract with the seller a "Contract for Sale of Real Property," and include many of the provisions later found in the P&S.