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  • Writer's pictureCCK

How and When to Use (and NOT Use) the 8 Day Unilateral Extension in the GAR® Contract

  • The best laid plans do not always result in the Closing happening on schedule. The Georgia Association of REALTOR® forms have given the Buyer and Seller some options when something impacts the ability to close on time. This is found in Section B.4. in the 2023 Purchase and Sale Agreement ("Agreement").




IMPORTANT CONSIDERATIONS:


  • The unilateral extension is used when the Buyer and Seller are not agreeing to mutually extend the Closing Date. If they want to mutually agree to a new Closing Date, they would use the F716 Amendment to Change Closing/Possession Date.



  • If the Buyer or Seller is unilaterally extending for one of the available reasons in the Agreement, they should use the F270 Notice to Unilaterally Extend the Closing Date for Eight Day.



  • This right can be used only once per contract by either the Buyer or the Seller but not both.


Either the Buyer or the Seller can extend for 8 days for the following reasons:


  • There is a title issue. These are title issues that the payment of money cannot solve. The Seller may want to continue to dispute their Georgia Department of Revenue tax lien but they cannot extend for a reason such as this since it is an issue that can be satisfied by money. If the title issue is something that the title company will agree to insure for, this also cannot be a reason to extent. If the title company will insure, it is marketable and marketable title is all the Seller promises to give at closing in the GAR® forms.

  • The Buyer's Lender or the Closing Attorney is not ready to close. The Closing Attorney is rarely the holdup unless they are a small office and have a staffing issue. Typically it is the lender who is not ready to close. Remember that Closing includes FUNDING THE LOAN. It is not closed until the Closing Attorney has the ability and authorization to hand out checks or send wires.

  • The TRID disclosures did not go out in time. This is just another variation of a lender delay and may be removed in the 2024 edition of the forms as duplicative.


The Deadline to Unilaterally Extend:


The deadline is the Closing Date. Unless the parties have selected another time for deadlines, that is 11:59pm on the day of the Closing.


The frustration for the Buyer or Seller who is receiving the unilateral extension is that this often happens at, literally, the 11th hour.


  • Title problems should be identified earlier in the process if you sent the contract to the Closing Attorney immediately when you went binding and the Closing Attorney promptly ordered title. If that did not happen, you need a new process or a new Closing Attorney.

  • Lender delays often cannot be identified earlier in the process. If you know about issues earlier on, you get them fixed, right? Sellers and Seller's Agents are confused, concerned, and frustrated when they find out in the 24-48 hours prior to closing that the Lender is not going to make the Closing Date. There is no easy solution for this. Sellers do need to be aware that the potential delay is possible. This is particularly true when the Seller has a purchase closing scheduled shortly after their sale. Check in regularly to make sure the Lender is on track. Send the request for Evidence of Ability to Close immediately after the financing contingency expires so that you know everything that is outstanding on the loan. Remember and use the Lenders who meet their deadlines. Remember the ones who do not.


Cheryl King, Closing Attorney and Director of Education

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