It’s important for buyers and sellers to fully read a contract and ask about any words that confuse them. In the Far/Bar AS IS contract, “deem” appears 10 times and “waive” 12 times, but some Florida Realtors Legal Hotline callers seemed confused about their definitions.
ORLANDO, Fla. – One reason people struggle to understand contracts is that they contain words that aren’t a part of everyday conversation. Before signing a significant contract, it’s important for both parties to slow down and read every word. If they find a word they don’t understand, they should look up what it means or, even better, reach out to their own lawyer with any questions. If they just skip over words, that ignorance could cost them.
Let’s look at a couple of words that seem to trip up callers to our Florida Realtors Legal Hotline: “deem,” and “waive.”
Here’s how a legal dictionary defines the word deem: “to treat something as if it were really something else.” In other words, it creates a legal fiction.
“Deem” appears 10 times in the “AS IS” Residential Contract for Sale and Purchase approved by the Florida Realtors and Florida Bar, which is the contract we’ll use throughout this article. Let’s look at two examples to see how it works.
The first one is easy to understand. Section 2(a) allows parties to check one of two boxes relating to delivery of escrow. The first box provides that it accompanies the offer, while the second creates a deadline (3 days, if left blank). It then says “IF NEITHER BOX IS CHECKED, THEN OPTION (ii) SHALL BE DEEMED SELECTED.” That means that, although both parties signed a contract with no box selected, for legal purposes we’ll pretend the second box was checked.
Here’s a more subtle use: “Loan Approval which requires a condition related to the sale by Buyer of other property shall not be deemed Loan Approval for purposes of this subparagraph.” So, let’s say a buyer receives a letter from a lender titled “Loan Approval” that shows the buyer is approved for the exact type of financing described in the contract. However, it also mentions that the buyer must close a pending sale of other property before the lender will fund. In that case, the loan approval they received “shall not be deemed a Loan Approval.” Therefore, the buyer should act like they never received the loan approval.
In other words, the contract pretends the lender denied the application or remained silent. The buyer will have the option to terminate the contract before the loan approval period or, if they’re confident everything will work out, go forward with their deposit likely at risk.
The word “waive” generally means to give away a legal right. You’ve likely seen it in the context of a waiver document. It’s the kind of thing you would sign before going white water rafting, riding go-karts, or even using computer software. The company is basically asking you to give away your right to sue them in the future if you get harmed in ways described in the waiver. Some variation of “waive” appears in the contract 12 times.
Section 18, Standard X, titled Buyer Waiver of Claims, provides that “To the extent permitted by law, Buyer waives any claims against Seller and against any real estate licensee involved in the negotiation of this Contract for any damage or defects pertaining to the physical condition of the Property that may exist at Closing of this Contract and be subsequently discovered by the Buyer …”
While this is a broad waiver that could cut off a number of otherwise valid legal claims a buyer would otherwise have, that first part “To the extent permitted by law” does leave the door open for claims like a seller’s fraud or failure to disclose latent defects.
Joel Maxson is Associate General Counsel for Florida Realtors
Note: Advice deemed accurate on date of publication
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