Closing Issues

Often issues arise at closing that require added attention and cannot be resolved at the table. For these matters, agreements are written to solidify the terms of resolution, the amount of escrow, if any, and the time within which the issues must be resolved.

If repair or other remaining items are not resolved at closing they are waived. The practitioner should ascertain the problem, agree to a resolution and reduce the resolution to writing. The writing is considered a new contract and not subject to the Doctrine of Merger.

Commercial contracts often contain warranties and representations that at least one of the parties does not want to lose at closing. Those contracts will often contain a clause that says, “The provisions of this contract (or clause) shall survive the closing.” This defeats the Doctrine of Merger and retains the status of the contract as enforceable under its own terms.