About the Real Estate Binder
What is a Binder?
A real estate binder is an agreement that is commonly drafted by real estate agents. It is a document that contains all the terms of a proposed real estate transaction and usually contains the names of both parties, who their real estate agents are, who their attorneys are, the address of the subject real estate property and of the course the purchase price.
What is the Purpose of a Real Estate Binder?
A binder serves two main functions: to outline the basic terms of the agreement and to commemorate the intent of both buyer and seller to enter into the deal.
However, is the real estate binder a binding contract? After all, it is in writing and signed by both parties, it identifies the property and the sales price. Sometimes there is even an earnest money deposit that is made. Isn’t that enough to bind the two parties, as the ame binder implies?
Whether the binder is a binding contract depends on the customs of your area and the language of the binder. Even within Connecticut, there are very different customs between say Fairfield County and the Hartford Area. In Fairfield County it is custom for attorneys to draft the final contracts. Therefore, it is common to find binders with language that calls for a further “superseding contract between the parties to incorporate the details stated herein”. In northern parts of Connecticut, some real estate agents specifically draft binders that are meant to binding real estate purchase and sale contracts, with language that allows for an attorney review period that is often 7 or 14 days from date of signing.
The three factors to look for when deciding when a binder is meant to be the contract are (1) does the language indicate intent to be bound without further contracting, (2) due the circumstances of the transaction indicate an intent to be bound, and (3) was the purpose of signing the binder to bind the parties to a final deal?
What Are the Real Estate Binder & Contract Customs in Fairfield County, Connecticut?
With the Fairfield County custom being that the attorneys draft the real estate purchase and sale agreement, how does this process with binders play out? It all starts with the real estate agents.
The real estate agents in Fairfield County know the custom and therefore, they use binders that call for a superseding contract. Many realtors do not use a binder, per se, but chose instead to use an “Information Sheet”, which has all the same contents as a binder, but does not have the signatures of the buyer or seller.
The binder or information sheet need to find their way to the Seller’s attorney. The Seller’s attorney then drafts a proposed contract using those terms and sends two unsigned copies to the Buyer’s Attorney. The Buyer’s Attorney reviews the contract, negotiates any changes that may be necessary, and has his client sign both originals, as well as provide a check for any deposit amounts due at contract signing. Both originals and the deposit funds are sent back to the Seller’s Attorney, who has the Seller sign both originals, and returns one original to Buyer’s Attorney and keeping one original for their file.