As real estate professionals we know that surprises at closing are generally not a good thing. They can take many forms, often can not be anticipated and typically create stress, adverse feelings and sometimes expensive consequential legal action. Adjustments of rents and security deposits at closing should not be a surprise to either the seller or the buyer, but overlooking the calculation of the actual amounts during the contract and due diligence stage creates a risk of disagreement at or right before closing.
The Florida Realtors® Commercial Contract Form makes the Seller responsible for delivering an updated rent roll and tenant estoppel letters to the Buyer at closing (paragraph 9(C)) and provides that taxes, interest, rents, association dues and insurance premiums acceptable to Buyer will be pro-rated through the day before closing (paragraph 9(D), but this does not insure that the amounts in question will be agreed to and it does not specifically address tenant security deposits. The closing/title agent may calculate the pro-rations and place them on the Closing Statement, assuming he or she has been provided, in advance of closing, the leases or the estoppels that verify the monthly rent payments and security deposits held by the seller/landlord, however, if those documents are incomplete, illegible, late to be produced or not produced at all, the calculated amounts may be inaccurate and the additional time and collaborative effort to make the correct calculations may delay closing.
Agents who represent sellers should remind their clients to obtain tenant estoppel letters from tenants as soon as the buyer has completed its due diligence and removed contingencies. They should also assist the client in collecting and keeping track of those estoppels and delivering them to the closing agent. Agents who represent buyers should assist their clients in obtaining copies of the tenant estoppel letters in advance of closing and confirm that they have been delivered to the closing agent. If the closing agent is an experienced attorney then it is likely that she will send an e-mail to both agents and the parties at least one day before the closing and request a confirmation that her calculation of the adjustments is acceptable. If this step is overlooked then the “surprise” at closing is more likely.
To eliminate the possibility of surprise, I recommend that the calculations be included in a contract addendum to be signed prior to closing. The addendum should identify each lease or tenant and the credit amount given by seller to buyer for security deposit and the monthly rent. It is also a good idea to include any other adjustments that the parties have agreed to as part of the transaction. By having their clients sign the addendum prior to closing or, at least confirming their agreement to sign the addendum at the closing table, agents can mitigate the risk of surprise and disagreement at the closing table.