Good Faith Is an Essential Covenant in Real Estate Transactions

Good Faith Negotiation

Good Faith is a fundamental aspect of any legal transaction, particularly in the realm of Silicon Valley real estate. This is especially true in the state of California, where the doctrine of good faith is deeply entrenched in the law and practice. This article aims to explore the concept of good faith in real estate transactions in California, its implications for both buyers and sellers, and the legal ramifications of breaching this essential covenant.

Understanding Good Faith in Real Estate Transactions

The term “good faith” is a legal concept rooted in the Latin phrase “Bona Fides”, a term that dates back to Roman times and has been inherited from the legal traditions of the British Empire. This principle implies an inherent responsibility between parties involved in an agreement to act with honest intentions and fulfill the agreement responsibly.

“Good faith implies responsibility between parties involved in an agreement to act with honest intentions.”

Significance of Good Faith in Real Estate Transactions

In the dynamic world of real estate, the significance of buyers and sellers working in good faith to adhere to the terms of a real estate purchase agreement cannot be overstated. This mutual commitment is the cornerstone of a successful transaction. When both parties respect and fulfill their obligations, it ensures a smooth and efficient process, minimizing the risk of misunderstandings or disputes. Adhering to the agreement terms also fosters a sense of trust and professionalism, which is crucial in an industry reliant on reputation and client referrals. Especially in competitive markets like the Bay Area, Silicon Valley, and Santa Cruz, maintaining this professional integrity not only helps in closing individual deals but also contributes to a Realtor’s long-term success and client satisfaction.

The Implied Covenant of Good Faith and Fair Dealing

The Implied Covenant of Good Faith and Fair Dealing is a fundamental legal principle that plays a critical role in real estate transactions. Embedded in every contractual agreement, this covenant requires that both parties to a contract – whether in the Bay Area, Silicon Valley, or beyond – act honestly and fairly towards each other, ensuring that neither party undermines the other’s rights or benefits under the contract. In real estate, this means that buyers, sellers, and their agents must interact transparently, honoring their commitments and not engaging in any behavior that would sabotage the contract’s objectives. For instance, a seller must not conceal defects in the property, and a buyer must genuinely intend to perform as he is obligated to under teh contract. This covenant is key to fostering a trustworthy environment in real estate dealings, where integrity is as valuable as the properties being traded.

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The California Perspective

In California, the doctrine of good faith has been given substantial legal weight. The landmark case of Brown v. Superior Court (1949) affirmed the significance of the implied covenant of good faith and fair dealing in contracts, stating that each party has an obligation not to do anything that would harm the other party’s ability to benefit from the agreement.

Good Faith in Practice

What does it look like to work in good faith during a real estate transaction in California?  It’s actually simple:  it comes down to each party doing what they say they’re going to do, and doing nothing that would injure the other party.  For starters, this means that each party will adhere to the timelines set forth in the Residential Purchase Agreement.

For example, the seller has seven days to provide the buyer all the required disclosure documents.  The seller is obligated to work in good faith to get all that information to the buyer.  Likewise, the buyer might have three days to get their earnest money deposit into escrow – the buyer must do everything they can do ensure that their deposit is made in a timely fashion.

When it comes to working in good faith under the terms of the purchase agreement, one aspect that routinely gets trampled upon is the the buyer’s inspection period. This gives the buyer a certain number of days to investigate the property, and if the investigations prove unsatisfactory, the buyer can cancel the contract and have their earnest money deposit returned to them. Many buyers go into contract, tie up the property, and do no inspections while they decide if they truly want to buy the property or not.

Another way good faith is broken is when a buyer delays ordering an appraisal until they are certain that the inspection reports they order are satisfactory – but this is not what the contract calls for, as these are two independent contingencies that run alongside each other rather than in sequence.

Anything that the buyer or seller does while in contract that does not strictly adhere to the terms and timelines of the contract is construed as a breach of good faith and fair dealing and should be scrupulously avoided.

Legal Ramifications of Breaching Good Faith

In California, breaching the covenant of good faith, especially in real estate transactions, can have significant legal ramifications. If a party to a real estate contract is found to have breached this implicit covenant, they could face various consequences:

  • Damages for Financial Loss: The aggrieved party may be awarded monetary damages to compensate for any financial loss incurred due to the breach. This could include direct losses related to the transaction and other consequential damages.
  • Specific Performance: In some cases, a court may order the breaching party to fulfill their obligations as per the original contract terms. This is more common in real estate transactions due to the unique nature of property.
  • Rescission of Contract: The contract may be rescinded or terminated, with the parties being restored to their original positions, as if the contract had never been entered into.
  • Punitive Damages: In cases where the breach is found to be particularly egregious or malicious, punitive damages may be awarded. These are intended to punish the wrongdoer and deter similar conduct in the future.
  • Reputational Harm: For real estate professionals, breaching good faith can lead to severe reputational damage, impacting their ability to do business in the future.
  • Professional Disciplinary Actions: Real estate agents and brokers found breaching this covenant may face disciplinary actions from licensing boards, including fines, mandatory education, suspension, or even license revocation.

It’s essential for all parties in a real estate transaction in California to understand the importance of adhering to the covenant of good faith to avoid these legal and professional consequences.

Fair Dealing in California Real Estate Transactions

Fair dealing in the context of real estate transactions, particularly in California, refers to the ethical and legal obligation of all parties involved to act honestly and fairly. Fair dealing is about ethical conduct and transparency. It encompasses a broader range of behaviors such as honesty in representations, disclosing known defects of a property, and avoiding conflicts of interest. It’s about ensuring that all parties in a transaction are treated fairly and equitably. This concept is essential for REALTORS, buyers, and sellers alike. Here’s how it breaks down:

  • Honesty and Transparency: Parties must be honest in their dealings, which means disclosing all relevant information about the property. For instance, if there’s a known defect with the property, it must be disclosed to the potential buyer.
  • Duty of Care: REALTORS, in particular, have a duty of care towards their clients. They should provide accurate and timely information so that clients can make informed decisions.
  • Fair Representation: All parties should be represented fairly. This means that a realtor should not favor one party over another and should aim to ensure that all parties understand the terms and conditions of the transaction.
  • No Misrepresentation: Misrepresentation, whether intentional or through negligence, is against the principles of fair dealing. This includes exaggerating property features or hiding defects.
  • Ethical Conduct: This encompasses a broader range of behaviors, such as avoiding conflicts of interest and ensuring confidentiality when required. Bear in mind that all REALTORS are bound by the National Association of REALTORS Code of Ethics.
  • Compliance with Laws: All real estate transactions must comply with state and federal laws. In California, this includes adherence to the California Civil Code and other relevant statutes governing real estate.
  • Fair Negotiation Practices: During negotiations, all parties should engage in fair and reasonable practices. This means avoiding any form of undue pressure or manipulative tactics.

Fair Dealing is a crucial element of any real estate transaction that I am a part of. A REALTOR such as myself who is committed to fair dealing builds trust with clients and enhances my reputation, which is crucial for long-term success in regions like the Bay Area, Silicon Valley.. Remember, in the real estate business, a good reputation is one of a REALTOR’s most valuable assets. That’s why it’s important to work with a REALTOR who has a long-established record of operating ethically in the business.

Protecting Your Interests

While the doctrine of good faith is implied in all contracts, it’s crucial for parties involved in real estate transactions to protect their interests. This can be achieved by carefully drafting contracts and consulting with a competent attorney to avoid any potential breach of the implied covenant.


In conclusion, the concept of good faith is integral to real estate transactions in California. It ensures fairness and integrity in dealings and protects the interests of all parties involved. Breaching this covenant can lead to legal action and potential damages. Therefore, it’s crucial for parties involved in real estate transactions to understand the implications of this doctrine and act accordingly.

“Good faith in real estate transactions ensures fairness, integrity and protects the interests of all parties involved.”

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About the Author
Seb Frey helps long-time Bay Area homeowners make their next move easily the next one yet. If you're looking for a minimum of hassle, maximum net cash on sale, and certain results, contact Seb today.