Buyers With No Check - Beware, Deal or no Deal?
What if the buyer doesn't deliver the offer check? The Cape Cod and Islands Association Of Realtors (CCIAOR) recently published an article providing direction on this question. Basically, if you used one form for the offer, the answer is no deal. If you used another form, the answer is deal. Confused? Make sure your real estate professional isn't!
Because I am not a lawyer and because this is not legal advice, I need to say, "It is my understanding that" in MA, a binding real estate contract needs a written offer, acceptance of that offer with no changes and within the time constraints of that offer, and then some form of consideration delivered and received by the seller. If one of these components is not in place, then there is probably not a binding real estate contract. Oops, unless the form being used does not require the three parts, according to an article published by the CCIAOR in July 2020. So what do those parts consist of?
Written: means not verbal, and buyers are always asking, "Will they take X?" Seasoned professionals know to answer, "All written offers will be presented to the seller." Written offers are thoughtful and contain the written contingencies and requests of the buyer to the seller. There is little room for , "that's not what I meant," with a written offer. The seller can agree or Counter Offer. A counter offer is actually a written offer to a specific buyer, and it has changes to the original offer from that buyer.
Acceptance: means that both parties - buyer and seller - have agreed to the terms in writing. Terms can include contingencies, price, dates, etc. Without written acknowledgment, and one that is within the expiration time lines of the offer or counter-offer, there is not an agreement. "They said they'd sign it," is not an acceptance. Written acceptance is the key. There have been deals that went to a different buyer than the one who was assured the seller was planning to sign.
Consideration: This is usually money. It, something of value, has to change hands, whatever it is. If the buyer agent has the funds, usually in the form of a check, that is only considered delivered to the seller when the buyer agent then hands it to the selling side - office, agent, seller, etc. If the consideration is not delivered, the consideration part of the real estate transaction has not been accomplished.
I have recently been in a transaction where the check was not delivered. The parties were not able to move forward in negotiations, and although the papers were signed, without the delivery of the check there was no agreement, and thus no deal. The attorneys instructed the parties to part ways and the property was sold to someone else.
The Takeaway I got from the CCIAOR article about Buyers with no check, which is actually titled Is my offer legally binding? is:
Having an agent who understands the process, the papers, and the local requirements is important, especially when there is a limited inventory and there are many buyers. If you need professionals, Holly and I are prepared when you're ready. And, we network all over the world with professionals who know their forms and processes, too.
It's a beautiful day on Cape Cod!
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