By: Thomas S. Tripodianos Published: April 2006

Real Estate Binders

Question. Is a “binder agreement” for the sale and purchase of real property owned by a husband and wife enforceable by purchaser if only the husband signed the agreement?

answer. YES. To be enforceable, the purchase deposit agreement or as it’s commonly called the “binder” must satisfy the statute of frauds. In other words, it must be in writing, identify the parties to the subject real estate sales transaction, described the realty to be sold with reasonable particularity, and state the purchase price of the realty, the down payment called for as well as its due date, and the balance due upon closing. In the case at hand the binder also provided for a closing date, and stated that the transaction was not subject to mortgage financing. The additional fact that the agreement stated that a more formal contract was to be signed does not render the purchase deposit agreement unenforceable

Generally, where spouses own real property as tenants by the entirety, an agreement of sale signed by only one spouse is ineffective to convey title. However, if it is shown that the wife was aware of and actively participated in the transaction, the wife will be stopped from denying the husband’s authority to execute the contract on behalf of the wife. The wife’s contention that she did not sign the purchase deposit agreement, while true, does necessarily mean that the binder is not enforceable. The same reasoning applies if the roles of the husband and wife are reversed.

That being said, the better practice is to have all title owners sign the binder thus eliminating any questions as to who is authorized to do what.

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