The Hawaii Association of Realtors (HAR) recently published a new version of its standard form of contract for the purchase and sale of residential property in the State of Hawaii. No question, the most obvious change to the standard form is its new title – “Purchase Contract” – which replaced the form known as “Deposit Receipt Offer and Acceptance” or “DROA.” This article is meant to assist real estate brokers ans salespersons, lawyers, and Buyers and Sellers to better understand the Hawaii DROA or Hawaii Purchase Contract.
OUTLINE OF THE PURCHASE CONTRACT
The Purchase Contract is organized broadly into an introductory section followed by four major sections. The latter are designated as Section A, Section B, Section C, and Section D. Section C contains the terms of the Offer and is the “meat” of the form. Section C begins on page two of the For and its seventy-nine paragraphs continue almost to the end of what has now become a twelve-page single-spaced document.
Looking briefly at the major sections:
- Section A contains “Agency Disclosures,” which each Brokerage Firm is required to make to the Parties if that Firm serves as an agent or other representative of a Party in the transaction.
- Section B serves as a receipt of the Buyer’s initial deposit and is usually signed by the Buyer’s agent. Section B also addresses whether the Buyer or Escrow will earn interest on the Buyer’s deposit if the deposit is placed into an interest bearing account.
- Section C, as previously noted, is the major part of the Purchase Contract. It constitutes the Offer to buy the Property and contains the Offer’s terms and conditions, numbered C-1 through C-79. Section C also includes a list of additional documents (called “addendum” if one document and “addenda” if more than one). Those documents may be physically attached or incorporated by reference. They are intended, in either case, to become part of the Purchase Contract.
- Section D is the portion of the Purchase Contract where the Seller will either accept the Buyer’s Offer of make a Counter Offer to it (thereby rejecting the Buyer’s original Offer). If the Seller wishes to make a Counter Offer, the Seller would usually do so by attaching HAR’s standard form of “Counter Offer.” Section D also confirms the Seller’s agreement to pay the agreed upon commission to the Brokerage Firm with the listing to sell the Property.
Finally, although not legally part of the Purchase Contract, the HAR standard form “Cooperating Brokerage Firm’s Separate Agreement” is usually attached to the Purchase Contract. This agreement is between the Brokerage Firm that represents the Seller and the Brokerage Firm (if different) that represents the Buyer. It provides for the sharing of the listing commission to compensate the Brokerage Firm providing services to the Buyer. Typically, but not necessarily, the commission is split equally between the two Brokerage Firms.
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