In a recent contract I reviewed, I found the following language in the “Other Terms” section:

“Seller to arrange for inspection of fireplace and
chimney and shall provide a written report to the Buyer.”

We speak with a certain informality, and particularly in person, we can follow up, explain, expand, and clarify all while conveying non-verbal messages with our intonation and expression. Writing, on the other hand, is quite challenging. It is just words on paper. Consequently, conveying what one means or intends and doing it clearly is, in a word, difficult.

It is not uncommon to see language added by one real estate agent or the other on our form contracts. When doing so, agents must be very careful to write what they mean and convey their client’s desires or interests clearly. Besides the obvious reason for clarity in a contract, there are two important issues to consider.

One, the “Miscellaneous” paragraph in the Virginia Residential Sales Contract states in relevant part, “[t]ypewritten or handwritten provisions included in this Contract will control all pre-printed provisions that are in conflict.” Thus, when one writes something into the contract, it controls. If the standard language of the contract says “A” and one writes in “B”, then it is “B.”

Second, there is a general contract interpretation principle that ambiguities in the terms of a contract will be construed against the drafter. In other words, if a party drafts a provision in a contract that later produces a dispute and a court finds that the provision is ambiguous, the meaning of the provision will be construed against the person who drafted it. After all, it is the drafter who was in the best position to be unambiguous.

The language found in the contract quoted above is problematic. First, there is no time period identified for the inspection or delivery of the report to the Buyer. Second, there is no procedure or mechanism set up in the event the report indicates a problem with, or necessary repair to, the fireplace or chimney. There is also no remedy for the Buyer. Essentially, the literal interpretation of the language suggests that the Buyer will eventually receive a report (gosh, it could even be after closing for all we know) and that is it. The Buyer has no avenue, procedure or mechanism to do anything, regardless of the condition of the fireplace or chimney.

Some practical tips for when one writes something into the contract. Be pithy. Identify with particularity obligations of the parties, time frames, and remedies or consequences if the obligations or time frames are not met. Have a colleague or broker read it and tell you what it means. If their answer is not what you thought you wrote, go back to the drawing board. Repeat!