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  • Writer's picturePeter Lamont, Esq.

The Safety Net in Real Estate Deals: Unpacking the Mortgage Contingency Clause

Buying a home is a monumental life event, akin to the season finale of your favorite TV show. You've navigated through the episodes of house hunting, and now you're at the cliffhanger: Will you secure the mortgage to make this dream a reality? Enter the mortgage contingency clause, the unsung hero that can save the day or, at the very least, save you from financial ruin.

What Is a Mortgage Contingency Clause?


In the simplest terms, a mortgage contingency clause is your "get out of jail free" card in a real estate contract. It stipulates that your obligation to purchase the property hinges on your ability to secure a mortgage within a specified time frame, usually between 30 to 45 days. If you can't get the financing, this clause allows you to walk away from the deal without losing your earnest money deposit or facing legal repercussions.


The Anatomy of the Clause


The mortgage contingency clause is not a one-size-fits-all provision. It outlines specific conditions under which you, the buyer, are expected to obtain financing. These conditions often include the type of loan you're seeking, the maximum interest rate you're willing to accept, and the time frame within which you must secure the mortgage. Think of it as the script that both parties agree to follow, setting the stage for how the drama unfolds.


Why It Matters for Buyers


For buyers, the mortgage contingency clause is a financial safety net. Imagine you've found the house of your dreams, but your mortgage application is denied because of a sudden change in your credit score or employment status. Without a mortgage contingency clause, you could lose your earnest money deposit, which is often a substantial amount. Worse yet, the seller could potentially sue you for failing to complete the purchase. This clause gives you a legal and financial cushion, allowing you to back out gracefully if things don't go as planned.


The Seller's Perspective


While the mortgage contingency clause primarily protects the buyer, it also serves the interests of the seller by setting a timeline for the buyer to secure financing. Once that period expires, the seller is free to entertain other offers, rather than being stuck in a holding pattern. It's akin to a director having backup actors ready to step in if the lead can't perform.


The Fine Print


As with any legal document, the devil is in the details. Both parties should scrutinize the mortgage contingency clause carefully. For instance, some clauses may require the buyer to apply for a mortgage within a certain number of days after the contract is signed. Others might specify that the buyer must make a "good faith effort" to secure financing, a term that can be open to interpretation and could lead to disputes.

The mortgage contingency clause is not a one-size-fits-all provision. It outlines specific conditions under which you, the buyer, are expected to obtain financing.

The Role of Legal Counsel


Given the complexities and potential pitfalls, it's advisable to retain an attorney experienced in real estate transactions. Legal counsel can help you navigate the intricacies of the mortgage contingency clause, ensuring that it serves your interests and minimizes risks. It's like having a seasoned showrunner to guide you through the twists and turns of the plot, ensuring a satisfying conclusion for all involved.


The Final Act


In the grand narrative of buying a home, the mortgage contingency clause plays a pivotal role. It sets the terms, outlines the stakes, and provides a safety net for both buyer and seller. Understanding this clause is crucial for anyone venturing into the real estate market, whether you're a first-time homebuyer or a seasoned investor.


So, the next time you find yourself engrossed in the drama of a real estate transaction, remember the mortgage contingency clause. It may not be the star of the show, but it's the supporting actor that can make or break the final act.



Do you have questions about buying or selling a home? If so, contact us today at our Bergen County Office. Call Us at (201) 904-2211 or email Us at info@pjlesq.com

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If you would like more information about this post or if you want to discuss your legal matter with an attorney at the Law Offices of Peter J. Lamont, please contact me at pl@pjlesq.com or at (201) 904-2211. Don't forget to check out and subscribe to our podcast and YouTube channel. We have hundreds of podcasts and videos concerning a variety of business and legal topics. I look forward to answering any questions that you might have.

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As with any legal issue, it is important that you obtain competent legal counsel before making any decisions about how to respond to a subpoena or whether to challenge one - even if you believe that compliance is not required. Because each situation is different, it may be impossible for this article to address all issues raised by every situation encountered in responding to a subpoena. The information below can give you guidance regarding some common issues related to subpoenas, but you should consult with an attorney before taking any actions (or refraining from acts) based on these suggestions. Separately, this post will focus on New Jersey law. If you receive a subpoena in a state other than New Jersey you should immediately seek the advice of an attorney in your state as certain rules differ in other states.


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