Special offer

Will they take a back-up contract?

By
Real Estate Broker/Owner with Riverbend Realty, Cape Girardeau, MO 2004008944

First, let's clarify what a back-up contract really is. Many buyers confuse a back-up offer with a back-up contract. To qualify as a contract, it has to be signed by all parties. That means that the seller and buyer have agreed to all terms. A back-up contract is like any other contract for sale, but with one difference: It becomes effective only if it is still in place when the current contract is voided for some reason. Should that happen, the terms of the sale to the back-up buyer have already been settled; and the sale proceeds pretty much the same as if that buyer had been in the number one position all along. The back-up contract is nullified if the Signaturesprimary contract concludes successfully.

An offer is merely an offer, though it may be written on a contract form. It looks like a contract, but it is not enforceable when the seller does not also sign it. The fact that the offer exists may provide some solace to a buyer who lost out on the perfect house, but it provides no security. If the contract in place should fail, the seller then has another buyer with whom to enter negotiations; but the seller is not obligated to the buyer in any way.

Why would the parties enter into a back-up contract? A back-up contract specifies the terms of the sale. Holding houseNegotiations are complete, and the contract can be put into place immediately. That serves the purposes of both parties--the seller, who has suffered a delay because the primary contract fell through; and the buyer, who has not yet found a home and wants the one in question. For both parties, expediency is the key issue.

The back-up contract is not re-negotiable, unless both parties agree; and that can be either a blessing or a curse, depending on your point of view. If prices are falling, the buyer is locked into a price that may not be as attractive as it was. Being locked into a contract effectively locks the buyer out of the market and into a sort of holding pattern. 

The seller, on the other hand, may have learned through the appraisal that the house is worth more than previously thought, and the seller's agent may have received more attractive offers after the back-up was signed. The seller may even have decided that the timing is not right for selling at all. Both parties are obligated by the signed contract. In one sense, though, the seller is MORE obligated, because the buyer often backs out after finding another house.

Especially in the REO/foreclosure side of my business, I am often asked if the seller will "take a back-up contract." Will they take an offer? Yes, but that offer probably will stay in my file drawer. Though details of the offer may be entered on the seller's web portal, it will NOT be signed. So, NO, they will not "take" a contract. The presence of a back-up offer does not automatically give preferential status to the would-be buyer.

Some REO vendors do not even have a mechanism in place for presenting additional offers once a contract is in place. They ABSOLUTELY do not want additional paperwork forwarded to them once they are under contract.

Disclaimer: I am not a lawyer, and I don't even play one on the internet.

 

Posted by

* * * * * * * * * * * * * * *

If you are looking for a foreclosure in Cape Girardeau, Perry, N. Scott, or Bollinger counties, I am the region's most experienced REO agent. As the area's ONLY Fannie Mae direct listing agent, I list more foreclosure properties than any other agent in this MLS. I am among the few local agents approved to both list and sell HUD properties. Give me a call if you are looking for help with the purchase of a foreclosure property.

______________________________________________________

http://www.homepath.com/  for Fannie Mae properties

http://www.homesteps.com/  for Freddie Mac properties

http://www.hudhomestore.com/ for HUD properties (foreclosures that were FHA financed)

____________________________________________________________________________________________

If you want up-to-the-minute real estate information, the only way to get it is to have an agent set you up on auto-notify with immediate delivery. Your listing information will come directly from MLS only when it comes from an MLS member. You willl not have to wait for the information to roll to those other websites, and you will not have to check multiple sources. It's free, so why not give me a chance to help you in your search?


NO OTHER SOURCE is as complete or as fast as your local REALTOR®’s source. This is not just an advertisement for REALTORS®--it is information about how the system really works.

Click to email Liz   Call on Liz Lockhart for A Higher Degree of Excellence

©2015 Liz Lockhart (if you reblog, link back and leave copyright tag intact) Protected by Copyscape Originality Check

Karen Monsour
Coldwell Banker Fort Lauderdale Beach - Fort Lauderdale, FL
REALTOR, SSRS - Sells FL Waterfront, Short Sale Expert!

Thank you for the clarification. I'm sure not everyone is aware of this, so I suggested it.  Very well written and easy to understand. Thanks.

Feb 12, 2011 01:50 PM
Lisa Ludlow Archer
Live Love Homes-Keller Williams, Charlotte, NC Ballantyne Area - Waxhaw, NC

Liz:

nice explanation. The last 2 we have written were on short sales and the banks completely ignored them. My buyers were upset but what can you do to a bank?

Feb 12, 2011 01:50 PM
Irina Riley
American Dream Colorado - Woodland Park, CO
GRI, SFR, CNE, e-PRO, SRES

Great information, Liz. But, Buyers also need to be careful with a back-up Contract, especially, if the first Contract fell through because of some serious conditions of the property. What about dates and deadlines?

Feb 12, 2011 01:50 PM
Liz Lockhart
Riverbend Realty, Cape Girardeau, MO - Cape Girardeau, MO
GRI, Cape Girardeau Real Estate

Thanks, Karen, for the kind words and the SUGGEST.

I get the "will they take a back-up contract" from agents all the time. Any time they phrase it like that, I fear they do not know the difference.

Feb 12, 2011 01:58 PM
Liz Lockhart
Riverbend Realty, Cape Girardeau, MO - Cape Girardeau, MO
GRI, Cape Girardeau Real Estate

Thanks, Lisa. What people do not understand about short sales and foreclosures is that banks do not want extra paperwork in front of them. They want one "contract" at a time.

Feb 12, 2011 02:00 PM
Liz Lockhart
Riverbend Realty, Cape Girardeau, MO - Cape Girardeau, MO
GRI, Cape Girardeau Real Estate

Irina~ You are so right! Buyers want to lock in the sellers, but they need to beware of the pitfalls.

What if the primary contract has numerous delays in closing? That's just one example of the "dates and deadlines" issue.

Feb 12, 2011 02:01 PM
Jon Zolsky, Daytona Beach, FL
Daytona Condo Realty, 386-405-4408 - Daytona Beach, FL
Buy Daytona condos for heavenly good prices

Liz, a very good blog post. I must admit, I did not thnk of it in these terms. We take offers, but the Seller does not sign them

Feb 12, 2011 02:13 PM
Ed Urbaniak
The Chin Sells Team at Weichert Realtors - Fairfax, VA

In Virginia, there would be little risk to a buyer.  If the buyer's agent understands the contract, then they can get their buyer out at just about any time.

Feb 12, 2011 02:13 PM
Liz Lockhart
Riverbend Realty, Cape Girardeau, MO - Cape Girardeau, MO
GRI, Cape Girardeau Real Estate

Thanks, Jon. I guess I am a stickler for the technicalities. I worry that the other agent may not understand, so I make a point of explaining.

Feb 12, 2011 02:28 PM
Liz Lockhart
Riverbend Realty, Cape Girardeau, MO - Cape Girardeau, MO
GRI, Cape Girardeau Real Estate

Ed~ Thanks for pointing that out. Contract laws vary from state to state! In Missouri, withdrawing an offer takes one side. Withdrawing a contract is a different beast.

Feb 12, 2011 02:29 PM
Linda Humphrey
Humphrey Home Connections Realty, Reno, Nevada - Reno, NV
CRS, Broker/Owner HHC Realty

I think the trick (as a buyer's agent) is adding a term that allows the buyer to cancel the backup contract at any point up to the voiding of the original contract, much as we do when writing a contract on a short sale (allowing cancellation any time up to third party approval). When the buyer is not in first position, they should not be "locked out of the market" as you describe and forced to sit on their hands on the off chance that the original contract comes apart.

Feb 12, 2011 04:31 PM
Liz Lockhart
Riverbend Realty, Cape Girardeau, MO - Cape Girardeau, MO
GRI, Cape Girardeau Real Estate

Yes, Linda, most buyer's agents would want an easy back out for a buyer. It's that "out" that makes such a contract less valuable to the seller. In fact, the unilateral buyer's out makes the back-up contract about as valuable to the seller as an offer.

It's because of the one-sidedness of the arrangement, as well as the inconvenience and inherent problems of having extra paperwork around, that REO sellers will not sign back-ups.

My primary point is that buyers and agents often confuse the terms, using them interchangeably.

Feb 13, 2011 01:51 AM
Linda Humphrey
Humphrey Home Connections Realty, Reno, Nevada - Reno, NV
CRS, Broker/Owner HHC Realty

Liz - Absolutely agree with you about the lack of understanding. And perhaps it is less valuable, but I don't agree that it is as valuable as an offer for all the reasons you outline in your post (terms hammered out, etc.) Also I remember one particular instance where my buyers had a backup contract on a house where both they and I knew the sellers; they dragged their feet making an offer (sigh) and got beat out. The buyers that were successful started becoming difficult and demanding, and I encouraged the seller's agent to use our contract to beat them up a little. I think she got a lot of mileage out of us :-) 

Feb 13, 2011 03:05 AM
Liz Lockhart
Riverbend Realty, Cape Girardeau, MO - Cape Girardeau, MO
GRI, Cape Girardeau Real Estate

Linda~ Keeping the primary buyer in line, as you point out, is a wonderful resource for the seller who also holds a back-up contract. I would caution the seller, however, to wield that club carefully, as back-up buyers can be gone in a heartbeat. Over-playing the hand may mean that the seller ends up with no contract.

Feb 13, 2011 08:14 AM
Anonymous
jujubee
Backup contracts are as much about the buyer as the seller, an offer has NO legal merit. So while Liz discourages use, she's wrong-minded entirely.
Apr 15, 2014 01:41 AM
#15
Liz Lockhart
Riverbend Realty, Cape Girardeau, MO - Cape Girardeau, MO
GRI, Cape Girardeau Real Estate

Jujubee~I have no idea who you are or what qualifies you. You need to go back and read what I actually said, because you are way off base. I never said that I discourage use of either the back-up offer or back-up contract. I did clarify the difference between the two. I also indicated that an offer is not enforceable, so I'm not sure where, exactly, you think I am "wrong-minded entirely." If you want to pick a fight, put on your gloves and identify yourself, along with stating your credentials.

Apr 15, 2014 01:21 PM