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Case Alert: Bowein v Sherman – The NABOR As-Is Contract

by | Dec 3, 2023 | Residential Real Estate |

Recently a very interesting case was decided in Collier County regarding the NABOR As-Is contract. A buyer submitted a $2 million offer for four properties in Naples Park. However, the buyer improperly filled out the legal description and address of the properties on the contract. The seller thought they were selling one property, but the buyer thought they were buying four properties. The court determined that there was no agreement between the parties and threw the contract out – causing both sides to spend a great deal of time and money for nothing.

In this specific case, the buyer wrote one address and one legal description on page one of the contract and then wrote “this offer is for” and added all four addresses and legal descriptions to Other Terms and Conditions at the end. No reference was made on page one to the additional properties listed on page nine of the contract. The court said the contract was not clear and unambiguous as to what property or properties were being sold. Therefore, the court decided there was NO contract, and the court would not fix the “patent” ambiguity to allow the contract to go through for the property listed on page one.

This is a clear case where using a lawyer up front, when drafting a non-conventional offer, is very important. A quick cure for this error would be to write “See Other Terms and Conditions” on the legal description line so that the complete list of properties to be conveyed is referenced in the property description section of the contract.

Should you have any questions or if you need assistance in drafting an offer, do not hesitate to contact me. I can be reached 24/7 at 239-784-5556 or [email protected].