Many buyers assume that if they walk away from a Florida real estate deal after the diligence period expires, their only exposure is the forfeiture of their deposit as liquidated damages.

That is often the practical outcome - but it is not what the standard FarBar form actually says.

Section 14(a) of the Florida Realtors “Commercial Contract” and Section 15(a) of the Florida Realtors/Florida Bar “AS IS Residential Contract for Sale and Purchase” both preserve a potential equitable remedy (including specific performance) in favor of the Seller in the event of a Buyer default. Whether that remedy would ultimately be enforceable in a given case is debatable, particularly where the contract also provides the option of liquidated damages. But the language is there - and it creates risk that many buyers do not appreciate.

This is just one example of several “landmines” in the standard Florida Realtors/Florida Bar contract forms (often referred to collectively as “FarBar” forms*). These forms are widely used across Florida because they streamline negotiations and allow parties to get deals under contract quickly (particularly smaller commercial deals and residential deals of all sizes), which is an important advantage in competitive situations.

But speed comes with tradeoffs. The standard forms are not heavily negotiated documents, and without careful revision, they can leave buyers exposed in ways that are not always obvious.

Below are some of the most common issues I see, along with practical approaches to addressing them.‍

1. Seller Remedies and Specific Performance.

As noted above, the form preserves the Seller’s right to pursue equitable remedies, including specific performance, against a defaulting Buyer.

While there are strong arguments that liquidated damages should be the exclusive remedy in most cases, the presence of this language creates uncertainty and potential litigation risk. At a minimum, Buyers should consider revising the remedy provision to clearly limit the Seller to retention of the deposit.

2. Limited Seller Representations and Warranties.

The FarBar forms are largely “buyer beware.” Outside of non-waivable legal obligations (such as the duty to disclose latent defects in residential transactions under Johnson v. Davis), the Seller makes very few affirmative representations.

In commercial transactions in particular, the form does not address key issues such as:

• the status of leases and contracts,
• environmental matters,
• operating income and expenses, or
• the absence of violations of law.

While estoppel certificates are contemplated in the commercial FarBar form, the form does not require “clean” estoppels or provide meaningful remedies if issues are revealed.

For most transactions, this gap should be addressed through an addendum with targeted representations and warranties tailored to the asset.

3. Title and Survey Protections.

The standard form places much of the burden for title and survey review on the Buyer during the diligence period, with relatively limited contractual protection. Sometimes the time periods actually filled in on the form for delivery of the title commitment and review of title are also unrealistic, either requiring it to be done way too early or on the eve of closing. Buyers are forced to compress their title review into a short window. It often results in Buyers having to do a lot of the legwork on title themselves, and being forced into a take it or leave it situation, as opposed to a more methodical and robust process that is more customary in a negotiated form contract. While the FarBar form does require Seller to deliver marketable title, it does not expressly require the Seller to cure open permits, terminate notices of commencement or cure code violations.

4. Common "Fill-in-the-Blank" Pitfalls.

Because these are form contracts, small drafting oversights can create outsized problems. Two recurring issues I see are:

Outdated Acceptance Deadlines
The form includes a deadline for acceptance of the offer. If that date is not updated and the contract is signed after it expires, a party may argue that no binding contract was ever formed.

Ambiguous Closing Dates
Phrases like “on or before May 1” or “30 days after approvals” can create uncertainty if there is no clear outside closing date. This can lead to disputes over enforceability or make it difficult to coordinate with lenders and other transaction parties.

Where possible, a definite closing date is preferable (or a clearly defined outside date).

5. Weak Financing Contingency Language.

Where a financing contingency is used, the standard language often falls short of what buyers expect.

For example, the contingency is tied to “Loan Approval,” but that term may include approvals subject to conditions that are not commercially acceptable (such as significant reserve requirements). The definition is not precise enough to ensure that the Buyer can terminate if financing is unavailable on acceptable terms.

If financing is a material component of the deal, this provision should be carefully revised.

A Practical Approach:

Despite these issues, the FarBar forms remain useful tools. Their biggest advantage is speed - they allow parties to sign a contract quickly without negotiating a fully bespoke purchase agreement from scratch.

The most effective approach, when a counterparty presents a FarBar contract, is usually not to discard the form entirely but to:

1. Make targeted revisions to key provisions by editing the pdf directly (I use text boxes); and
2. Attach a concise addendum addressing the most important gaps, using plain English language.

Well-drafted addenda can incorporate “must-have” protections while keeping the overall document streamlined and consistent with market expectations.

Every transaction is different, and negotiating leverage will vary. But with modest, focused edits, it is often possible to preserve the efficiency of the FarBar form while materially improving the Buyer’s position.

If you'd like a copy of my standard addendum to the FarBar form, feel free to reach out at laura@maherlawpllc.com.

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* An astute colleague pointed out after original publication that technically the Florida Bar has only approved the Residential Purchase and Sale Agreement and the “AS IS” Residential Purchase and Sale Agreement, so use of the term "FarBAR" in all cases is not entirely accurate. In this article, I use that term as shorthand, because that's what I and other lawyers in the industry sometimes call these forms generally. The Commercial Contract is produced by the Florida Realtors alone, even though there are several paragraphs that contain very similar boilerplate language, hence why I often lump them conceptually into one.

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