Buyer makes an offer. Counter offer is made. Buyer has meantime seen another house they prefer, so choose to ignore the counter offer. Is the Seller then permitted to accept the original offer? Does it make any difference if the counter offer is in writing or verbal?
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1You need a written offer and acceptance for a house. And you will find that even with written offer and acceptance, the contract will have contingent clauses.– ChuckCottrillMay 2, 2015 at 3:22
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The question "Is the Seller permitted" can only be evaluated in terms of the consequences of the buyer not honoring the original offer to buy, once accepted. Since the earnest money penalty doesn't go into effect until after due diligence, the buyer can effectively back out without penalty. Contracts are only enforceable if there is a breach of contract penalty, such as losing the earnest money.– steampoweredJul 31, 2016 at 19:31
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3 Answers
When they made a counter offer they essentially rejected your offer, and you are no obligation to accept theirs. Nor are you obligated to your original offer. That is the risk a person takes when they make a counter offer. Their agent/representative should have advised them of this risk.
Because time is of the essence in most of these transactions their delay with the extra round also made your original offer void. You were right to keep other properties in play.
answered May 1, 2015 at 18:30
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2But nothing stops the seller from rescinding the counter-offer, and offering the Buyer's offered terms -- the Buyer does not have obligation to accept, but they did make that offer on the house. May 2, 2015 at 3:15
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@ChuckCottrill Offers usually have a expiration deadline and so accepting the original offer will work only if the original offer has not expired. Usually, when counter-offers are made (e.g. asking for more money than on the original offer), it is done by marking up the original offer, possibly with a new expiration date, and returning it to the prospective buyer; not by writing up a new document. Else, the buyer might decide to un-ignore a fresh document with a counter-offer and accept it while the seller accepts the as-yet-unexpired original offer. May 2, 2015 at 14:00
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That is also why these offer & acceptance should have both date and time. And part of the complexity of real estate negotiations is that agents stand between the buyer and seller, and add complexity to the process (although they do help to remove some of the emotional reaction which could derail the process). READ a standard real estate contract and you will observe how much of the language is to protect the agent(s). And they aren't even lawyers. May 4, 2015 at 23:52
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2Nothing requires that one party mark up the document and respond. One could respond with a counter-offer as a fresh document, it still superceeds the prior offer. May 4, 2015 at 23:54
Offers usually have an expiration deadline. As long as the signed offer is returned by the seller to the potential buyer before the expiration - it is a valid contract. The fact that the seller countered and his counter-offer wasn't accepted is irrelevant.
The buyer can void the offer, as long as it is not yet accepted, by notifying the seller in writing that the offer is null and void.
I'm not a lawyer, you should ask your real-estate attorney to be sure, but that is my understanding of the contract law.
answered May 2, 2015 at 8:47
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1This may not be the answer realtors want to hear, but I think it is the legally correct answer. Jul 27, 2016 at 23:32
It doesn't matter if the buyer breaches the contract during the due diligence period, because most due diligence periods allow the buyer to breach the agreement without cause. Unless there is due diligence money added to the contract (different from earnest money), then breaching the contract costs nothing to the buyer.
This happened to me. I learned the hard way: until the due diligence period is over, the buyer can renege without consequences. It's one of the risks of being a seller.
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