Creating a Contract: Help Me, Help You; Part 1: Who is the Seller? Are They Married?

We have the great privilege of working on real estate transfers in every step of the process, but we usually begin our residential closing work with the receipt of a purchase contract. We find there are good contracts out there and some, well, not so good contracts.

So what separates the good from the bad? A good contract is complete and accurate. In the light most favorable, a bad contract has the essential information but leaves Realtors, Brokers, and attorneys trying to fill in the blanks.  This can cause frustration and delays to all of the parties involved.  I find that a few of the same omissions and inaccuracies occur time and time again.  This blog will focus on the seller and their marital status, and how to make sure these items are complete when you are drafting a purchase contract.

  1. Who is the seller?

Let us assume an individual is selling a house and the individual needs a contract to sell it. I would suggest a quick check to see if they own it.  We have had a few sellers that do not actually own the property they are selling.  If the seller owns the property, make sure how they own it.  Was the property deeded to them?  Did they get it through inheritance?  If through inheritance, is the estate of the decedent still open and ongoing?  Did the seller deed the property to a trust where they are trustee?  If owned by the individual, list the individual.  If owned by a trust, list the trust.  If owned by a decedent, list the estate and executor / administrator.

Nothing stalls a sale of property like digging for documents to prove ownership or authority to sign to convey the property. Many sellers do not understand the complication so please prepare them for it.  To this day I have sellers confused why I need to see their trust documents / entity documents to confirm their authority to sell property deeded in to the trust / entity.

  1. Is the seller married?

When the seller actually is an individual, we very often see that the marital status of a seller is missing on a contract for the purchase of real estate. This is essential because the attorney drafting the seller documents will need to include a spouse on the documents of conveyance to transfer the martial interest, if any, the spouse may have.  This is a phone call that can be avoided if already included on the purchase contract.  This may also require some tactful questioning.

Is the couple married but separated? We once had a client who failed to recognize that they were married because of their dislike for their spouse.  It took no small amount of conversation to explain why the law still considered them married.

Is the couple married in another country and they believe they are not married here in the USA? We have represented clients who are going through an immigration process for their spouse and believe that they are not married because USA does not “recognize” their marital status.  Please confirm if your client falls in this category and make sure they are aware that their spouse will need to find their way to a consulate to execute the seller documents.


The next blog will go in to descriptions of real property on purchase contracts and common errors.


Family LawReal Estate