Drafting Dilemmas: Questionable Schedule A Clauses

Reading Time: 5 minutes


I figured we'd have some fun with this week's article.

After reading through some old agreements, I thought I'd share some Schedule A clauses that can only be described as "questionable"...

Here we go:

1) The Doctor's handwriting

This wasn't actually a doctor who wrote this, but they definitely have the handwriting to be one. It's also worth noting that the rest of the Agreement was typed. Thankfully, no issues arose where we had to scrutinize each word of this clause.

2) Permitted to use as...

When I first read this, I thought there was a missing page of the agreement. I was wrong. This agent chose to start Schedule A with this - I can't even call this a clause. I assume they were looking for some sort of warranty on the permitted use and didn't trust that clause 8 was sufficient...

3) More bang for your buck

I like to think this agent was trying to get their client a few extra knickknacks around the house. Either way, I like the counter-amendment by the seller's agent where they agree to complete some unidentified work in a "neat workmanship type manner" at their own expense. What makes this better is Clause 5. Exclusions was blank.

4) Can I stay here in the meantime?

This clause is written fine, but it was a 28-day closing. I figure you might as well have the buyers move in at this point. Maybe they already gave up their old place and were just looking for some free lodging.

5) Making an "ass" out of "u" and "me"

The buyer's agent wrote this clause. It's essentially meaningless, considering their assumption can be wrong. Not quite sure what the intention was here - either ask for the warranty or take them as-is.

6) The Telefax

This one is great because it was in an agreement from late 2021. I simply admire this agent's commitment to the "telefax".

7) Problems waiting to happen

This is just laziness. DO NOT leave an issue this substantial to a 4.5-line clause. So many questions waiting for dispute here... What constitutes complete? Who deems satisfaction? Who sets the cost of these jobs? Needless to say, we rewrote this entirely.

8) The reply

Realtors... no need to reply to clauses in the APS.

9) The thrifty buyer

The only rationale I could think of here was the buyer trying to save on search costs at closing. Not quite worth it to jeopardize your title search to save a few bucks. Remember that.

Anyways...

While some of these are entertaining, the lesson here is to take pride in your drafting. You should be constantly collecting a strong bank of precedents to rely on in your business. And when you read a good clause from another agent, steal it and use it to benefit your clients down the road.

Drafting the APS is an important job. As lawyers, we can only execute what you write. So work at this, and be better for your clients.

Also, if you've come across some funny ones, please do share them with me.

Key Takeaway

Get better at drafting Schedule "A" clauses.


Written by
Zachary Soccio-Marandola
Real Estate Lawyer

Direct: (647) 797-6881
Email: zachary@socciomarandola.com