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Old 08-28-2013, 01:31 PM
 
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We recently made an offer on a home. Our agent put in a clause that the offer we put forward was contingent on the sale of our home. They accepted and signed our offer.

10 days later, they wanted to use the "72 hour" clause to force us to make a decision in 72 hours if they received another offer. However, their agent did not counter with that or add that to the contract on our offer.

We are moving forward with the purchase of the new home and all of our documents for the 2nd mortgage are underway.

However sellers and sellers agent are not happy because my agent will not bend the rules so they can accept another offer since its not in the contract.

Just made me think, is it common for the buyers agent to include the 72 hour clause in the contingency when sending the sellers an offer? Is this something the sellers agent should have added?
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Old 08-28-2013, 01:39 PM
 
Location: Upper East, NY
1,143 posts, read 2,478,097 times
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You may have to expound on prevailing contract standards in your region.

Did "signed our offer" mean that the property is in binding contract to sell? If yes, then just act on the contract.

I would ask more about the 72 hr clause, but it seems irrelevant if there is a contract already. It's the seller/seller agent's problem they did not put it in.

If they have another offer and are thinking of ways to use it, you need to discourage them from doing that by getting your agent to threaten legal action to enforce the current contract- he should be incented to do this - he doesn't want to lose this deal either.
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Old 08-28-2013, 01:46 PM
 
Location: Oro Valley AZ.
1,021 posts, read 2,196,940 times
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It is the Listing Agents responsibility to have that language included. If listing agent did not have a 72 hour clause included then shame on him. If seller has nothing signed by you to allow them to enforce it then that is their problem.
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Old 08-28-2013, 04:58 PM
 
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If I understand correctly, you are buying a home. The contract calls for a contingency to allow you to sell your home. That can't be endless. And there should have been an end time and/or a kickout clause if a better offer comes in, meaning one better than what your situation was...one with no home sale contingency.

It seems your agent and sellers agent all forgot to put this pretty standard clause in there. Then someone remembered that and are now trying to change the contract. Is this correct?

It sounds also like you are near closing...2nd mortgage and all. so you'll be able to carry two mortgages?

They can't change the contract. But there should at least have been an end date in there. Was there?
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Old 08-28-2013, 06:37 PM
 
Location: Austin
6,950 posts, read 16,329,202 times
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In Texas, our form for a contingency has a place for the number of days you're going to allow for the removal of said contingency, so in that case, it would be the buyer's agent's responsibility to put in a time limit, and the seller's agent's responsibility to make sure it was a time the seller was good for and either accept or counter it. As a buyer's agent, you would not leave this space blank.

It will be market specific with the different forms used state to state.
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Old 08-28-2013, 11:32 PM
 
Location: El Dorado Hills, CA
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The seller should be angry with their agent. Not your problem...unless there is something in the contract that was signed.
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Old 08-29-2013, 07:41 AM
 
Location: Needham, MA
6,237 posts, read 8,658,489 times
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Quote:
Originally Posted by RickTucsonHomes View Post
It is the Listing Agents responsibility to have that language included. If listing agent did not have a 72 hour clause included then shame on him. If seller has nothing signed by you to allow them to enforce it then that is their problem.
Quote:
Originally Posted by NinaN View Post
The seller should be angry with their agent. Not your problem...unless there is something in the contract that was signed.
I'm with these guys. When I represent the buyer, I'm trying to get them the best deal possible with the best terms possible. If the seller and their agent are dumb enough to accept a contract where a contingency is in force throughout the contract, then all the better for my client. It's not my job or responsibility to protect the seller's interests by putting in language for them.

Quote:
Originally Posted by cully View Post
If I understand correctly, you are buying a home. The contract calls for a contingency to allow you to sell your home. That can't be endless.
You're right. I'm not an attorney but my understanding of contract law is that every contract must have a beginning and an end date in order to be considered a legal contract. While a contingency in the contract does not have to have a specific end date, it would obviously end when the contract ends (the closing date) unless otherwise specified.

Shame on this listing agent for allowing their client to accept such a clause though. They really put them in a bad position. If this were an absolutely dead market, I can understand one does not have a lot of negotiating leverage and might accept such a clause but it sounds like this seller is getting other offers so it can't be that dead.

Regardless what the nature of the contingency is, accepting a contract where a contingency is in force throughout the entire contract is a pretty major no-no. Not a smart thing to do.
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Old 08-29-2013, 08:24 AM
 
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It is not in the contract, it is of no relevance.

Yes, the sellers goofed up by not putting it in there. "Normally" there is a clause which says that the contingent buyer has 72 hours to match a non-contingent offer. In your case, there is no such clause, the seller is SOL.

What I am curious about is with no such clause, and no end date for you to sell your house in order the complete the purchase of the subject house, how/when does it end? Theoretically, with no clause and no 'contingent sale by "X" date, this could go on forever.

I am sure I missed something. I also take note that the offer is contingent on the sale of your home, but now you are trying to get a second mortgage, presumably to buy the subject house. It's a technicality, but......this isn't 'exactly' what the contract says.
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Old 08-29-2013, 08:38 AM
 
5,048 posts, read 6,056,391 times
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Quote:
Originally Posted by Ted Bear View Post
It is not in the contract, it is of no relevance.

Yes, the sellers goofed up by not putting it in there. "Normally" there is a clause which says that the contingent buyer has 72 hours to match a non-contingent offer. In your case, there is no such clause, the seller is SOL.

What I am curious about is with no such clause, and no end date for you to sell your house in order the complete the purchase of the subject house, how/when does it end? Theoretically, with no clause and no 'contingent sale by "X" date, this could go on forever.

I am sure I missed something. I also take note that the offer is contingent on the sale of your home, but now you are trying to get a second mortgage, presumably to buy the subject house. It's a technicality, but......this isn't 'exactly' what the contract says.

I'm wondering the same thing about dates. There's got to be something buried in the mouse print. If not, that could be a case for it not being a sound contract and someone being able to call it off at some point.
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Old 08-29-2013, 09:23 AM
 
Location: Scottsdale, AZ
1,970 posts, read 3,659,590 times
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Without reading the contract it is hard to tell what has been agreed to, but I do agree that the Sellers agent was remiss in not including the "72 hour clause" (or something similar).

With regard to "going on forever", this is unlikely as I assume you had a closing date. In my opinion, that would mean the contingency would only live until closing date. If you fail to close by closing date you will be in breach. Again, it is all about the contract.
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