JEANNE REARDON - Attorney at Law
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Real Estate Law Blog

Real Estate Contract Mortgage Contingency Clause

Most people obtain financing when purchasing a house, condo, or co-op.  In that case, the contract of sale will contain a mortgage contingency clause making the sale contingent upon the buyer obtaining a mortgage in a certain amount.  If the buyer's loan application is denied by the lending institution, the buyer can then cancel the contract and get the down payment back.

In order to benefit from the protections allowed by the mortgage contingency clause the buyer must strictly abide by all its terms, i.e. the buyer must only apply for a loan in the amount stated in the clause (or such lesser sum as buyer shall be willing to accept), and obtain the mortgage within the time frame given in the clause.  If the buyer applies for a loan greater than the amount stated in the clause and is then denied a loan, the buyer will have forfeited the protection afforded by the clause and will not be able to cancel the contract.  If the buyer is then unable to obtain other funds to complete the purchase the buyer will be in default under the terms of the contract and more than likely lose their down payment.  On the other hand, if the buyer is approved for a loan greater than stated in the mortgage clause, then no problem.  Nonetheless, I  would never advise a client to take such a risk and put their down payment in jeopardy.  There are many reasons why the loan may be denied that have nothing to do with the financial qualifications of the buyer and are beyond the buyer's control.  An experienced real estate attorney will help you navigate through this process.

The mortgage contingency clause is there to protect your down payment should your loan be denied.  To best protect yourself when purchasing a home with a mortgage, hire an experienced real estate attorney who fully understands all aspects of the mortgage contingency clause and will guide you through the entire closing process.

To speak with an experienced real estate attorney, call us at (516) 314-8433.  To learn more about our services and how we can assist you, visit us at www.jreardonlaw.com