Risk of Loss Clauses: Contract for Real Property
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FAQ
Under Section 2-510(1) of the UCC, the loss falls on seller and remains there until seller cures the breach or until buyer accepts despite the breach.
In purchase and sale agreements for commercial or residential real property (purchase agreements), risk of loss clauses allocate the risk of casualty or condemnation (also called eminent domain or taking) that may occur during the contract period.
A Standard Clause for use in a contract for the sale of goods to specify when the risk of loss to the goods passes from the seller to the buyer. This Standard Clause has integrated drafting notes with important explanations and drafting and negotiating tips.
The general rule for risk of loss was set out as this: risk of loss shifts when seller has completed obligations under the contract. We said if the goods are conforming, the only obligation left is delivery, so then risk of loss would shift upon delivery.
This means that the risk of loss of damage to the property before closing and before recording, falls on the purchaser unless otherwise agreed to in a written agreement.
The risk of loss is part of equitable title in a property. This means that, from the moment you sign the real estate sale contract, you receive equitable title in the property and take on the risk of loss.
The risk of loss of specific goods is borne by the seller as a general rule, until ownership is transferred. ingly, if the object has been lost before perfection, the seller bears the loss. The reason for this is that, there was no contract, for there was no cause or consideration.
The majority of states hold that the buyer bears the risk of loss because the doctrine of equitable conversion has given the buyer equitable title.