Over the last year, I have noticed an alarming trend where residential builders, realtors, and sellers enter into contracts for new construction that utilize the “As Is” Residential Contract for Sale and Purchase (commonly referred to as “FARBAR Contract”), which is a standard form contract published by the Florida Realtors and The Florida Bar. The FARBAR Contract is a valuable tool in most residential real estate transactions; it provides standardized terms governing a transaction as well as provides for the basic outline to get to closing.
While immensely valuable in the resale market, the FARBAR Contract is ill-suited for the new construction context. The primary reason for this seems fairly obvious, as the FARBAR Contract assumes that the home exists at the time the contract is entered into. As a result, the FARBAR Contract fails to address many issues that arise during the construction process.
The most common of these issues are construction delays, increases in the price of material, and financing contingencies. These issues combined with external factors such as supply shortages, labor shortages, governmental delays and increasing interest rates have highlighted the inadequacies of the FARBAR Contract in the new construction context in recent months.
Construction delays are simply not accounted for under the FARBAR Contract; again, the assumption underpinning the FARBAR Contract is that the home exists, and the seller’s performance merely requires delivering clear title, possession of the property at closing, and executing the necessary closing documents. Extensions are certainly common with the FARBAR Contract, but they often do not extend for months on end.
With new construction, supply and labor shortages and delays at the permitting office can mean delays that go on for months. This often leaves buyers frustrated and on the hook for alternate housing and storage throughout the duration of the delay. Rising interest rates also pose an issue with new construction projects. Delays in construction could result in a buyer’s interest rate lock expiring or require per diem payments to preserve the interest rate. Significant delays could mean thousands of dollars in per diem charges to avoid large jumps in interest rates.