What is the FHA/VA Amendatory Clause?

The FHA/VA Amendatory Clause is a federally mandated provision included in real estate transactions involving FHA (Federal Housing Administration) or VA (Veterans Affairs) loans. This clause ensures that the buyer is not obligated to complete the purchase or incur penalties if the final appraised value of the property is less than the agreed-upon sales price.

According to 38 CFR § 36.4303(k)(4), the law prohibits sellers from compelling buyers to pay more than the appraised value when purchasing a property with an FHA or VA loan. This safeguard protects buyers from overpaying beyond what the lender has determined to be the fair market value of the property.

Before closing on an FHA or VA-backed loan, the lender will require both the buyer and seller, along with the real estate agents, to sign the FHA/VA Amendatory Clause. The key purpose of this document is to confirm that all parties involved agree that the buyer is not required to move forward with the purchase if the appraisal does not meet or exceed the agreed sales price stated in Section 3C of the sales contract.

Why is the FHA/VA Amendatory Clause Important?

The FHA/VA Amendatory Clause is a critical part of home-buying protections for FHA and VA loan recipients because it:

Safeguards Buyer Investments: It ensures that buyers aren't forced into a financial bind by overpaying for a property that does not appraise for the sales price. This is especially important for first-time homebuyers, veterans, and low- to moderate-income borrowers using FHA or VA loans.

Encourages Fair Market Transactions: This clause promotes transparent and fair transactions by aligning the sales price with the appraised value, protecting the buyer from inflated prices.

Ensures Buyer Flexibility: If the property’s appraised value comes in lower than the agreed purchase price, the buyer has the option to renegotiate the price or withdraw from the contract without forfeiting their earnest money deposit or facing penalties.

Key Elements of the FHA/VA Amendatory Clause:

Non-Obligation to Purchase: The buyer is not legally required to complete the sale if the property is appraised for less than the agreed-upon price.

No Forfeiture of Earnest Money: If the sale is canceled due to a lower appraisal, the buyer is entitled to receive their earnest money deposit back.

Renegotiation Opportunities: Buyers can use the appraisal to renegotiate the sales price to reflect the property’s actual value or walk away from the deal.

How the FHA/VA Amendatory Clause Affects Real Estate Transactions:

This clause is part of the mandatory paperwork for FHA and VA loans and is often included as an addendum to the sales contract. Real estate agents, lenders, and title companies ensure that the clause is executed prior to closing, ensuring the buyer’s protection.

Here’s how it works in a typical real estate transaction:

Appraisal Process: Once the purchase contract is signed, the lender orders an appraisal to determine the fair market value of the property.

Appraised Value vs. Sales Price: If the appraised value meets or exceeds the sales price, the transaction proceeds as planned. If the appraisal is lower than the agreed-upon sales price, the buyer is given the option to either renegotiate the price or withdraw from the contract.

Final Signatures: Before the sale can close, both the buyer and seller, along with their agents, must sign the FHA/VA Amendatory Clause to confirm the protection is in place.
What Buyers and Sellers Need to Know:

For Buyers: If you are using an FHA or VA loan, this clause is automatically included in your transaction. It protects you from overpaying for the property and gives you leverage in the event of a low appraisal.

For Sellers: As a seller, it’s important to understand that if the appraisal comes in lower than the contract price, you may need to lower the sales price or risk losing the buyer.

Frequently Asked Questions:

• What happens if the appraised value is lower than the sales price? The buyer can either request the seller to lower the sales price to match the appraised value or walk away from the deal without penalties.
• Is the FHA/VA Amendatory Clause mandatory? Yes, for any transaction involving an FHA or VA loan, this clause must be signed by both the buyer and seller before closing.
  Can the buyer still purchase the property for a higher price if they want to? Yes, the buyer has the option to pay the difference out of pocket, but the seller cannot force them to do so. It’s the buyer’s decision whether to proceed or not.
• What happens to the earnest money if the deal falls through due to a low appraisal? If the sale is canceled because of a low appraisal, the buyer is entitled to get their earnest money deposit refunded.

Conclusion: The FHA/VA Amendatory Clause is an essential part of protecting homebuyers using FHA or VA loans, ensuring they only pay what the property is worth. This clause empowers buyers to make informed decisions based on the appraised value, fostering transparency and fairness in real estate transactions.​

FHA/VA Amendatory Clause Example:

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