Read Answers to the Most Common Legal Questions We Get

"How can something called a 'binder' not be binding?" This is one of the most common questions I am asked by my real estate clients. Before answering, a little background and history is necessary.

Real Estate Binder Basics

For those of you unfamiliar with buying or selling a home in Fairfield County, Connecticut, a "binder" is the customary way of making an offer to purchase residential real estate. The purpose of the binder is to set forth the essential terms of a transaction, and for the parties to pledge to move forward on those terms in negotiating a contract.

These terms include:

• Purchase price
• Closing date
• Contingencies
• A timeframe for inspections

In short, traditionally, a binder was a "memorandum of terms" or "letter of intent;" a moral, if not legal, commitment to try to make a final deal based on the basic terms agreed to by Buyer and Seller. From the execution of the binder, contracts would be prepared, hopefully signed, and, at that point, the parties would be bound to the transaction.

When Binders Could Be Binding

Every real estate brokerage office uses its own form of binder to submit offers to sellers. About 15 years ago, some offices began including language in their binder forms which declared the binder to be a contract, unless another contract was signed. This language significantly muddied the waters. All of sudden, buyers and sellers were potentially obligated to carry forward with a transaction even though there was no further contract.

For example, if a buyer did inspections and notified the seller of unsatisfactory conditions, but did not specifically terminate the binder (now contract) within the contingency date in the binder, the Seller could refuse to address the inspection concerns and force the buyer to buy, claiming the binder was the contract. This argument applied even if the seller's and buyer's attorneys were negotiating the terms of the "real" contract. Alternatively, a buyer could force a seller to sell even if the seller had an immediate change of heart or received a substantially higher offer prior to inspections being done or a contract signed.

Intent Is the Deciding Factor

Needless to say, the new language created a mess. The result was a sudden increase in the number of parties attempting to enforce as a contract a document that was historically never intended to be a contract. Further complicating matters was the parties' potential obligations varied wildly depending on which office prepared the binder, since some offices did not include any "contractual" language, and, despite the discrepancy in language between offices, most realtors treated binders interchangeably. This led to significant uncertainty for buyers and sellers, as well as much litigation, threatened and actual (what you would expect with lawyers involved!). This—finally, I'm sure most of you are thinking—leads us to our answer: how a binder is not necessarily binding.

The courts have concluded it all comes down to a question of intent. Did the parties intend to be bound by the binder or did they contemplate further negotiations and a subsequent contract to be signed? If the buyer or seller attempting to enforce the binder could prove the other party intended to be legally bound by the binder, the binder could be enforced, and, thus, binding. In spite of this fact, intent is somewhat nebulous and incredibly difficult to prove without evidence of overt acts manifesting the party's intent. This is why, a binder, except in the most extreme cases, is not binding.

THERE IS ONE BIG EXECPTION!!!!

In some areas, particularly as you leave lower Fairfield County, realtors use full-blown contracts of sale to make offers. These contracts are usually distinguishable from the binders described above because they will typically contain around 25 discrete paragraphs filled with legalese and they will contain a five-day attorney review period. If you are asked to sign one of these contracts to make your offer, I STRONGLY SUGGEST, you have an attorney review first. If you sign without an attorney review, I URGE you to have an attorney review IMMEDIATELY before the attorney review period ends and you are bound by the contract.

Read the 2021 update here!

We Can Take the Guesswork Out of Your Real Estate Transaction

Do you have questions about your binder? Are you working to resolve an issue concerning the purchase or sale of real estate? The legal team at Bayer & Black, P.C. can help you reach a favorable conclusion to your case. We serve clients throughout Fairfield County. Our real estate lawyers have a reputation for excellent service in a wide range of legal matters. 

 

To take a test or not to take a test, that is the question! It is the source of many late night telephone calls. Ask 10 lawyers the same question and you may get 10 slightly different answers. The only correct answer is "it depends." There are so many fact specific scenarios that the subject can only be treated generally with some rules of thumb.

Implied Consent Law in Connecticut

In Connecticut there is an implied consent law. That means that if you choose to drive a vehicle in Connecticut and get pulled over you have agreed to take a chemical test of the officer's choosing if that stop results in an arrest for operating under the influence. The three types of tests are breath, urine and blood. The person arrested has no input into which test the police officer uses. It is the officers choice. The vast majority of cases involve breath tests so that is what we will discuss here.

Consequences of Refusing to Take a Chemical Test

If you refuse to take the test chosen by the officer then your right to drive in Connecticut will be suspended for a period of no less than 6 months without the ability to apply for a work/school permit for the first 90 days of that 6 month period. While there are worse things than getting your right to operate suspended it is a significant and costly consequence of your decision to refuse a test. The decision to take or refuse the test must be made almost immediately after you arrive back at the police department after being arrested and transported back to the station.

Consequences of Failing a Breath Test or Other Chemical Test

If you decide to take the breath test, and fail, and you have never had your license suspended for an alcohol related arrest in the past then you will lose your license for a maximum period of 120 days for a breath test .16 or higher and for a period of 90 days for result under .16. A result of .16 is twice the legal limit of .08. In either of those cases you will have the right to get a work or school travel permit from day 1 of the suspension unlike in the refusal scenario which has the 90 day waiting period.

What is the downside of taking the test? A failed breath test is a significant obstacle in fighting the operating under the influence (OUI) charge. There are two ways to be charged with OUI in Connecticut. The first is using the objective observations of the police officer such as erratic driving, odor of alcohol, bloodshot eyes, slurred speech, difficulty finding paperwork, unsteady on feet, failure to follow instructions, disoriented, and most importantly performance of standardized field sobriety tests such as horizontal gaze nystagmus (HGH), walk and turn and one-legged stand. The second is a failed chemical test. So, by taking and failing the test you make it much easier for the prosecutor to prove an OUI case against you. That is the downside.

Reasons to Take a Breath Test

Why would anyone take the test if it makes it easier for the prosecutor to prove the case? Because if the arrest is the first time you have been arrested for OUI, by taking the test, you limit the length of the suspension of your driver's license and preserve the ability to get a work/school permit without a waiting period. Further, if it is your first arrest you will be eligible for a diversionary program called the Alcohol Education Program (AEP). This means that if you complete this one year program the charges get dismissed and you will not have a a further license suspension as the result of a conviction.

Reasons to Avoid Taking a Breath Test

However, if you are not eligible for the AEP than you may not qualify for a work permit either if you have previously had your license suspended for an OUI charge in the past and will likely face an additional license suspension suspension of no less than one year in the future if you plead guilty to an OUI. Therefore, the benefits of taking the test for a person who will not be eligible for AEP drop significantly. Therefore, if this is not your first arrest for OUI refusing the test may be in your best interest in order to provide your attorney the best chance to fight the charge.

Are there times that even a first time offender should refuse to take the test? If you have been involved in an accident and there is the risk of that accident having resulted in serious injury or death to another person than you may not want to take the test as you may be charged with more serious offenses than OUI such as Assault in the 2nd degree with a motor vehicle or vehicular manslaughter.

In all of the above cases you know how much you have had to drink. Therefore, even in those cases where a refusal may seem the better course based upon your past history if you know you have not been drinking or have only had an amount to drink that would be unlikely to put you over the legal limit than you may still want to submit to the test.

Contact a Trusted Criminal Defense Attorney to Help You Make the Decision

The best advice is to keep the mobile telephone number or pager of a trusted criminal defense attorney in your wallet at all times. If you don't have the ability to contact your lawyer after hours than that person isn't much help to you as you are required to make real time decisions that cannot wait for him or her to get back to you the next day or even the next hour. Having my mobile phone on 24/7 may result in some lost sleep but preserving your freedom isn't a 9-5 job.