RESIDENTIAL PURCHASE AND SALE AGREEMENT
North Dakota
[// GUIDANCE: This template is drafted for fee-simple transfers of existing single-family residential real estate located in the State of North Dakota (“ND”). It reflects common ND practice and statutory requirements current through the date of drafting. Counsel should review and tailor bracketed items, optional language, and exhibits to the specifics of each transaction, particularly where a property is new construction, condominium, manufactured housing, or agricultural in nature.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Agreement to Purchase and Sell
- Earnest Money Deposit
- Contingencies
- Seller Disclosures
- Closing Procedures
- Representations and Warranties
- Covenants
- Risk of Loss and Insurance
- Default; Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block
- Exhibits & Schedules
1. DOCUMENT HEADER
RESIDENTIAL PURCHASE AND SALE AGREEMENT (this “Agreement”) is entered into and effective as of [Effective Date] (the “Effective Date”) by and between [Seller Legal Name], a [type of entity / individual] (“Seller”), and [Buyer Legal Name], a [type of entity / individual] (“Buyer”).
WHEREAS, Seller is the fee-simple owner of certain real property located at [Street Address, City, County, ND ZIP], together with all improvements and appurtenances (collectively, the “Property”); and
WHEREAS, Buyer desires to purchase, and Seller desires to sell, the Property upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and other good and valuable consideration, the receipt and adequacy of which are acknowledged, the parties agree as follows:
2. DEFINITIONS
For ease of reference, the following capitalized terms shall have the meanings indicated. Terms not defined here have their ordinary legal meaning or the meaning given elsewhere in this Agreement.
“Agreement” – this Residential Purchase and Sale Agreement, including all Exhibits and Schedules.
“Applicable Law” – the laws, statutes, regulations, and ordinances of the State of North Dakota and the United States of America, including, without limitation, N.D. Cent. Code § 47-10-02.1 and 42 U.S.C. § 4852d, each as amended.
“Appraisal Contingency Period” – [__] Business Days following the Effective Date.
“Business Day” – any day other than a Saturday, Sunday, or North Dakota state-recognized holiday.
“Buyer” – as identified in the Document Header.
“Closing” – the consummation of the purchase and sale contemplated herein.
“Closing Date” – [Closing Date], or such other date as the parties may mutually agree in writing.
“Deed” – a [Warranty Deed / Special Warranty Deed] conveying fee-simple title to the Property to Buyer.
“Deposit” or “Earnest Money” – the sum of $[Amount] U.S. Dollars tendered under Section 4.
“Escrow Agent” – [Title Company / Law Firm], or such other escrow holder agreed in writing.
“Financing Contingency Period” – [__] Business Days following the Effective Date.
“Inspection Contingency Period” – [__] Business Days following the Effective Date.
“Personal Property” – those items listed on Exhibit E.
“Purchase Price” – $[Amount in figures and words] U.S. Dollars.
“Seller” – as identified in the Document Header.
“Title Commitment” – a commitment for an owner’s policy of title insurance issued by the Title Company in the amount of the Purchase Price.
[// GUIDANCE: Add, delete, or modify defined terms as necessary; maintain alphabetical order.]
3. AGREEMENT TO PURCHASE AND SELL
3.1 Sale of Property. Seller agrees to sell, assign, and convey to Buyer, and Buyer agrees to purchase from Seller, all of Seller’s right, title, and interest in and to the Property, together with the Personal Property, free and clear of all liens and encumbrances other than the Permitted Exceptions (defined below).
3.2 Purchase Price & Payment.
(a) Purchase Price. Buyer shall pay Seller the Purchase Price as adjusted at Closing pursuant to Section 7.5.
(b) Form of Payment. The Purchase Price shall be paid (i) by the Deposit applied at Closing, and (ii) the balance by wire transfer of immediately available funds to Escrow Agent no later than 1:00 p.m. (local time at Escrow Agent) on the Closing Date.
3.3 Financing. Unless Buyer has marked “All Cash” in Exhibit D, Buyer’s obligation to close is contingent upon satisfaction of the Financing Contingency in Section 5.2.
4. EARNEST MONEY DEPOSIT
4.1 Delivery. Within [__] Business Days after the Effective Date, Buyer shall deliver the Deposit to Escrow Agent.
4.2 Holding. Escrow Agent shall hold the Deposit in a federally insured, interest-bearing trust account; interest, if any, shall follow the Deposit.
4.3 Application or Disbursement. The Deposit shall be:
(a) Applied to the Purchase Price at Closing;
(b) Returned to Buyer if Buyer rightfully terminates under any contingency; or
(c) Paid to Seller as liquidated damages as provided in Section 11.3(a) upon Buyer Default.
4.4 Liability Cap. THE PARTIES AGREE THAT, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 11.3(b) (SELLER DEFAULT), THE DEPOSIT CONSTITUTES THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER UNDER THIS AGREEMENT.
[// GUIDANCE: Escrow Agent’s duties are intentionally limited; parties may wish to attach a separate escrow agreement.]
5. CONTINGENCIES
5.1 Property Inspection Contingency. During the Inspection Contingency Period, Buyer and its inspectors may access the Property at reasonable times to conduct customary inspections. Buyer may, by written notice to Seller before expiration of that period, (a) accept the Property, (b) terminate this Agreement, or (c) request repairs or a price reduction. Seller shall respond within [__] Business Days, and if the parties do not reach written agreement by [__] Business Days thereafter, either party may terminate.
5.2 Financing Contingency. This Agreement is contingent on Buyer obtaining, on or before expiration of the Financing Contingency Period, a written loan commitment from a licensed financial institution in an amount not less than [percentage] % of the Purchase Price at prevailing market terms. Buyer shall promptly apply for such financing and furnish copies of the loan commitment or a written denial to Seller. Failure to provide either document by the deadline shall be deemed a waiver of this contingency.
5.3 Appraisal Contingency. If the appraised value obtained by Buyer’s lender is less than the Purchase Price, Buyer may, within [__] Business Days after receipt of the appraisal, (a) provide Seller a copy of the appraisal and renegotiate the Purchase Price, or (b) terminate this Agreement and receive a refund of the Deposit.
5.4 Title and Survey Contingency.
(a) Seller shall cause the Title Commitment and most recent abstract, together with any existing survey, to be delivered to Buyer within [__] Business Days after the Effective Date.
(b) Buyer shall have [__] Business Days thereafter to object in writing to matters other than the standard printed exceptions (“Title Objections”).
(c) Seller shall have [__] Business Days to cure the Title Objections. If Seller fails or elects not to cure, Buyer may waive the defects or terminate this Agreement.
5.5 Other Contingencies. Any additional contingencies are set forth in Exhibit D.
6. SELLER DISCLOSURES
6.1 ND Property Condition Disclosure. Prior to Buyer’s execution of this Agreement, Seller has provided Buyer with the written residential real estate property disclosure statement required by N.D. Cent. Code § 47-10-02.1 (the “ND Disclosure Statement”). Buyer acknowledges receipt by initialing here: Buyer Initials _/_.
6.2 Lead-Based Paint. For dwellings constructed prior to 1978, Seller shall deliver to Buyer the federally mandated lead-based paint hazard disclosure form and EPA pamphlet pursuant to 42 U.S.C. § 4852d. Buyer’s [10-day] right to conduct a lead-based paint inspection shall run concurrently with the Inspection Contingency Period unless otherwise stated in Exhibit D.
6.3 Radon, Well, Septic, and Other Environmental Conditions. Seller discloses the information set forth in the ND Disclosure Statement regarding radon, potable wells, septic systems, underground storage tanks, and mold. Buyer acknowledges that radon testing is recommended by the North Dakota Department of Health.
6.4 Updates. Seller shall promptly update the ND Disclosure Statement if Seller becomes aware of any material change prior to Closing.
6.5 Survival. The representations in this Section survive Closing for a period of twelve (12) months.
7. CLOSING PROCEDURES
7.1 Closing Date & Location. Closing shall occur on the Closing Date at the offices of the Escrow Agent in [County], North Dakota, or remotely via mail-away or electronic means acceptable to the parties.
7.2 Seller Closing Deliverables.
(a) The Deed duly executed and acknowledged.
(b) Bill of Sale for the Personal Property, if any.
(c) Affidavit of Title, gap indemnity, non-foreign person affidavit (FIRPTA), and any other documents reasonably required by Escrow Agent or Buyer’s lender.
(d) Keys, garage door openers, security codes, and similar access devices.
(e) Updated ND Disclosure Statement, if applicable.
7.3 Buyer Closing Deliverables.
(a) The balance of the Purchase Price.
(b) Loan documents, if applicable.
(c) Any state-specific transfer tax forms or certifications.
7.4 Title Policy. At Closing, Buyer shall receive an owner’s policy of title insurance issued by the Title Company, insuring fee-simple title to the Property subject only to the Permitted Exceptions, in an amount not less than the Purchase Price.
7.5 Prorations and Adjustments. The following items shall be prorated as of 11:59 p.m. on the day preceding the Closing Date:
(a) Real property taxes (based on the most recent tax bill or assessment),
(b) Assessments, utilities, rents, homeowner association dues, and fuel oil/propane remaining in tanks, if any.
All prorations are final unless the parties expressly agree to post-closing re-proration.
7.6 Possession. Possession shall be delivered to Buyer at Closing, broom-clean and free of occupants unless otherwise provided in Exhibit E (Post-Closing Occupancy Agreement).
7.7 Recording & Costs. The Deed shall be recorded in the office of the Recorder for [County] County, ND. Seller shall pay the cost of the owner’s title policy premium; Buyer shall pay lender’s policy premium (if any), recording fees, and loan-related charges.
8. REPRESENTATIONS AND WARRANTIES
8.1 Seller’s Representations. Seller represents and warrants to Buyer that, as of the Effective Date and as of Closing:
(a) Authority. Seller has full right, power, and authority to execute and perform this Agreement.
(b) Title. Seller holds fee-simple title to the Property free of liens other than those that will be satisfied at Closing.
(c) No Conflict. Performance of this Agreement will not violate any agreement or court order binding on Seller.
(d) Compliance. To Seller’s knowledge, the Property’s current use complies with Applicable Law.
(e) Foreign Person. Seller is not a “foreign person” within the meaning of FIRPTA.
(f) No Pending Proceedings. Seller has received no written notice of condemnation, litigation, or administrative proceeding materially affecting the Property.
8.2 Buyer’s Representations. Buyer represents and warrants to Seller that:
(a) Authority. Buyer has full power and authority to execute and perform this Agreement.
(b) Funds. Buyer has, or will have at Closing, sufficient funds or financing to pay the Purchase Price.
(c) No Conflict. Performance of this Agreement will not violate any agreement or court order binding on Buyer.
8.3 Survival. Seller’s and Buyer’s representations survive Closing for twelve (12) months, except for Seller’s title warranty in the Deed, which survives as provided therein.
9. COVENANTS
9.1 Seller Covenants. From the Effective Date through Closing, Seller shall:
(a) Maintain the Property in substantially the same condition, ordinary wear excepted;
(b) Not create any further liens, encumbrances, or long-term leases without Buyer’s prior written consent;
(c) Provide reasonable access to Buyer and its representatives upon at least 24-hour notice;
(d) Promptly notify Buyer of any material adverse change or governmental notice affecting the Property.
9.2 Buyer Covenants. Buyer shall:
(a) Diligently pursue its loan application (if any);
(b) Maintain in confidence any non-public information obtained through inspections;
(c) Indemnify Seller from mechanics’ liens arising from Buyer’s inspections.
10. RISK OF LOSS AND INSURANCE
10.1 Casualty. Risk of loss or damage to the Property by fire or other casualty remains with Seller until Closing. If a casualty occurs that would cost more than [__]% of the Purchase Price to repair, Buyer may, within ten (10) Business Days after notice, (a) terminate this Agreement and receive a refund of the Deposit, or (b) proceed to Closing and receive an assignment of insurance proceeds plus a credit for any deductible.
10.2 Condemnation. If, prior to Closing, a governmental authority initiates eminent-domain proceedings affecting a material portion of the Property, Buyer may elect to terminate this Agreement or receive an assignment of condemnation awards at Closing.
11. DEFAULT; REMEDIES
11.1 Events of Default.
(a) Buyer Default – failure to deliver the balance of the Purchase Price or otherwise perform any covenant within three (3) Business Days after written notice.
(b) Seller Default – failure to convey title or otherwise perform any covenant within three (3) Business Days after written notice.
11.2 Notice and Cure. The non-defaulting party shall provide written notice describing the default. Failure to cure within the specified period constitutes a “Final Default.”
11.3 Remedies.
(a) Buyer Final Default. Seller’s sole and exclusive remedy is to receive the Deposit as liquidated damages, after which neither party shall have further liability.
(b) Seller Final Default. Buyer may either (i) seek specific performance of this Agreement, or (ii) terminate and receive a return of the Deposit plus reimbursement of Buyer’s actual out-of-pocket third-party costs not to exceed [Earnest Money Amount], whereupon the parties shall have no further liability.
(c) Attorney Fees. The prevailing party in any action to enforce this Agreement is entitled to reasonable attorney fees and costs, except that recovery is subject to the liability cap in Section 4.4.
[// GUIDANCE: ND courts generally enforce liquidated-damages clauses when the amount is reasonable relative to anticipated harm. The amount of the Deposit should be calibrated accordingly.]
12. RISK ALLOCATION
12.1 Indemnification by Seller. Seller shall indemnify, defend, and hold Buyer harmless from any claim, damage, or liability arising out of Seller’s breach of Section 8.1, capped in the aggregate at the Deposit.
12.2 Indemnification by Buyer. Buyer shall indemnify, defend, and hold Seller harmless from any claim, damage, or liability arising out of Buyer’s entry onto the Property prior to Closing or Buyer’s breach of Section 8.2, capped in the aggregate at the Deposit.
12.3 Exclusion of Certain Damages. Neither party shall be liable to the other for punitive, special, or consequential damages.
12.4 Insurance. Until Closing, Seller shall maintain its existing hazard insurance and promptly notify Buyer of any changes or claims.
12.5 Force Majeure. Performance is excused for the period of delay caused by events beyond the reasonable control of the impacted party (e.g., acts of God, governmental orders, labor strikes); provided, however, that the Closing Date shall be extended no more than thirty (30) days for force-majeure events.
13. DISPUTE RESOLUTION
13.1 Good-Faith Negotiation. Before initiating litigation or arbitration, the parties shall confer in good faith for at least five (5) Business Days.
13.2 Arbitration (Optional). If [“Arbitration Elected”] is checked in Exhibit D, any dispute arising out of this Agreement shall be resolved by binding arbitration administered by the American Arbitration Association under its Real Estate Industry Rules. The arbitration shall take place in [County], ND before a single arbitrator who is a licensed North Dakota attorney with at least ten (10) years of real-estate experience. Judgment on the award may be entered in a court of competent jurisdiction.
13.3 Forum; Governing Law. This Agreement is governed by the internal laws of the State of North Dakota, without regard to conflict-of-laws principles. Subject to Section 13.2, the state courts sitting in [County], ND have exclusive jurisdiction.
13.4 Jury Trial. THE PARTIES ACKNOWLEDGE THAT THIS AGREEMENT DOES NOT CONTAIN A JURY-TRIAL WAIVER.
13.5 Specific Performance. Each party acknowledges that the Property is unique and that monetary damages may be inadequate. Accordingly, in addition to any other remedies, specific performance is an available remedy for Seller Default under Section 11.3(b)(i).
14. GENERAL PROVISIONS
14.1 Notices. All notices shall be in writing and deemed given (a) upon personal delivery, (b) one (1) Business Day after deposit with a nationally recognized overnight courier, or (c) upon confirmation of transmission if sent by email to the addresses set forth below the parties’ signatures.
14.2 Amendment; Waiver. No amendment or waiver is effective unless in writing and signed by the party against whom enforcement is sought. Waiver of any provision on one occasion is not a waiver of any other provision or of the same provision on another occasion.
14.3 Assignment. Buyer may not assign this Agreement without Seller’s prior written consent, except to an entity controlled by or under common control with Buyer provided Buyer remains liable.
14.4 Successors and Assigns. This Agreement binds and benefits the parties and their respective heirs, successors, and permitted assigns.
14.5 Entire Agreement; Merger. This Agreement, including its Exhibits and Schedules, constitutes the entire understanding between the parties and merges all prior negotiations.
14.6 Severability. If any provision is held invalid or unenforceable, the remaining provisions remain in full force, and the invalid provision shall be reformed to the minimum extent necessary to render it enforceable.
14.7 Counterparts; Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which is deemed an original, and all of which together constitute one instrument. Electronic signatures and delivery by PDF or similar format are equally binding.
14.8 Time of the Essence. Time is of the essence for every obligation herein.
14.9 Construction. The headings are for convenience only and do not affect interpretation. The parties have participated jointly in the drafting of this Agreement; no presumption against the drafter shall apply.
15. EXECUTION BLOCK
IN WITNESS WHEREOF, the parties have executed this Residential Purchase and Sale Agreement as of the Effective Date.
SELLER:
[Seller Legal Name]
By: ____
Name: ____
Title: _____
Address: ___
Email: ____
Phone: _______
State of __ )
County of __ ) ss.
On this _ day of _, 20__, before me, a Notary Public, personally appeared _____, known to me to be the person(s) who executed the foregoing instrument and acknowledged it as his/her free act and deed.
Notary Public
My Commission Expires: ____
BUYER:
[Buyer Legal Name]
By: ____
Name: ____
Title: _____
Address: ___
Email: ____
Phone: _______
State of __ )
County of __ ) ss.
On this _ day of _, 20__, before me, a Notary Public, personally appeared _____, known to me to be the person(s) who executed the foregoing instrument and acknowledged it as his/her free act and deed.
Notary Public
My Commission Expires: ____
[// GUIDANCE: ND does not require contract notarization for enforceability, but notarized signatures may facilitate recording if the Agreement (or memorandum of agreement) is to be recorded.]
16. EXHIBITS & SCHEDULES
Exhibit A Legal Description of Property
Exhibit B ND Residential Real Estate Property Disclosure Statement
Exhibit C Lead-Based Paint Disclosure (if applicable)
Exhibit D Contingency Timelines & Election of Arbitration
Exhibit E Personal Property / Post-Closing Occupancy Agreement
[// GUIDANCE: Always attach the fully completed ND Disclosure Statement before presenting the Agreement for signature. Verify that county-specific transfer-tax declarations, if any, are prepared for Closing. For new construction or if the property is located within a special assessment district, additional disclosures may be required under NDCC Ch. 40-23. Confirm with local counsel.]