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CA Real Estate: Contracts

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All guide sections

Contracts

Formation and enforceability

A contract needs offer, acceptance, consideration, capacity, lawful object, and mutual consent. A counteroffer terminates the original offer; acceptance must be communicated to be effective. Real property contracts fall within the statute of frauds and must be in writing, signed by the party to be charged, and identify the parties, price, and property. Electronic signatures are valid under California's UETA.

Key clauses

Contingencies (loan, appraisal, inspection, sale of buyer's home) must be removed in writing. Liquidated damages in a California residential purchase agreement are typically capped at 3% of the purchase price when the buyer's deposit funds are the seller's remedy. Time is of the essence clauses make deadlines enforceable. Mediation and arbitration clauses are separate and require initialing.

Remedies

Breach remedies include damages, specific performance, rescission, and liquidated damages. An option is a unilateral contract supported by separate consideration; an assignment transfers rights but not necessarily liability; a novation substitutes a new party.

Traps

Acceptance that changes terms is a counteroffer. Silence is not acceptance. Parol evidence cannot vary a fully integrated written agreement. A contract lacking a legal description or price is generally unenforceable.

Rule of thumb

Every term changed, every contingency removed, and every deadline must be in writing and signed.

Worked example

A buyer offers $600,000; the seller responds in writing at $615,000. That is a counteroffer and kills the original offer, which the buyer cannot later simply accept unless the seller revives it.