As the title suggests, dating is not just for members of online dating sites. Dating, in a different sense, is an important and necessary detail for any and every party entering into and negotiating a contract. While the concept is generally applicable to all forms of contracts, this blog post will focus on real estate contracts typically used in Collier County, Florida. The typical NABOR® and FAR/BAR contracts contain language along the following lines: “The Effective Date of this Contract shall be the last date either Seller or Buyer signs or initials this Contract … The latest date set forth on this contract by either party’s signature or initials shall be the effective date.” (emphasis added). Failure to pay attention to the underlined text could result in adverse consequences that can easily be avoided.
Does this situation sound familiar? You, or a party you are representing, sign and date a contract offer and deliver it to the other party. You engage in a couple of rounds of negotiating the deal points in the contract offer by exchanging marked up copies of the contract; but after the first round of counteroffers, you stop dating the initialed changes. Eventually, you come to an agreement on all of the terms of the contract. Congratulations, now you have a fully executed contract! Is there any issue here? The short answer is likely. Under a typical contract, the effective date is determined by the last date reflected in the document. In the hypothetical above, when both parties fail to date the changes in each round of counteroffer to the initial contract offer, the effective date becomes the last date contained in the contract (i.e. the date of the initial counteroffer since that is the last date reflected in the contract). This mistake could result in the loss of the already brief due diligence/inspection period or financing contingency deadline. In short, by failing to date all changes in the negotiated contract, the parties are short-changing themselves and, potentially, setting themselves up for a fight over compliance with the applicable contract deadlines. These headaches can be avoided by dating each and every initialed change.