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Should I add a coronavirus clause to my contract for a NYC apartment?

A "force majeure" clause protects buyers and sellers in case of delays due to circumstances beyond their control.

Austin Havens-Bowen for Brick Underground/Flickr

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Question:

I'm about to go to contract on an apartment. Should I have my attorney add a coronavirus clause?

Answer:

It's a good idea to add a clause to your contract to protect yourself in the likelihood that the coronavirus pandemic will cause some delays to your deal, our experts say.

Many have already taken this step, Inman reports, because the Covid-19 crisis is creating obstacles to closing a sale, such as preventing appraisals and making repairs as nonessential services are shut down.

"Everything has moved so fast," says Deanna Kory, a broker with Corcoran. "Even now, closings are getting delayed because as of now, buyers who purchase a condo with financing or buyers of co-ops cannot close virtually. Everyone seems to be understanding of that fact." 

It's in your best interests to have your attorney add a clause to allow for coronavirus-related delays to your deal.

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"Back in February, we starting including 'force majeure' language relating to the Covid-19 virus in our contracts," says Jeffrey Reich, a partner at Schwartz Sladkus Reich Greenberg Atlas. "Give the disruptions that have already been caused by the Covid-19 virus and the various executive orders handed down in New York, it is our advice that similar provisions be included in any such contact." 

A "force majeure" clause protects buyers and sellers in case of delays due to circumstances beyond your control—in this case, the rules created to prevent the spread of coronavirus, such as business shutdowns, social distancing, and quarantines.

The National Association of Realtors has also developed its own rider to deal with coronavirus delays. 

"The rider allows for the extension of time periods because of the complications of the Covid-19 issues, with a drop-dead date for cancellation if there situation extends beyond a date certain," says Kevin McConnell, a partner with Himmelstein, McConnell, Gribben, Donoghue & Joseph (a Brick sponsor.) "There is also a provision in which a purchaser who has received a loan commitment can nonetheless cancel it because of Covid-19, the purchaser has lost income and cannot close." 

Such clauses are not unprecedented; McConnell notes that similar provisions were added to contracts in the wake of the 2008 recession, though not all sellers agreed to such an addition. 

But given the extent to which everyone is affected by the coronavirus pandemic, most sellers today seem to be understanding of the likelihood that deals will slow down, Kory says. 


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