Counter Offer: Specific & Simple

The Offer to purchase is carefully crafted with phrases, number of days, a specific format, and defined terms.  When drafting counter offers (or amendments) the closer we stay to the exact language in the Offer the more likely we are to keep the document on track to be an enforceable contract.   Stray for the format and we open the door to ambiguity.  

Specific and Simple:

The inspection contingency on the WB 11 provides a deadline for the buyer to object to defects identified in the inspection report on line 421.  The contingency is deemed “satisfied” unless buyer within ____days of acceptance, (delivers a Notice…)  The blank on line 421 calls for a number, not a date.  If the number is unacceptable to the seller (let’s say the buyer wrote “21”), the line and number are addressed in a counter offer:
(1) Inspection Contingency. P 9 of 9. Line 421. Change “21 days” to “10 days”.
This format tells the reader to find the inspection contingency on p 9 of the offer, go to line 421, find “21 days” and change that number to “10 days”.  Everything else stays the same. 

The financing contingency on p 5 also uses X days from acceptance for a deadline for the buyer to deliver a commitment letter to the seller.  Let’s say it was 30, and now we are running up against the deadline and lender needs 7 more days.  Rather than do an amendment to “extend the financing contingency to December 14, 2018” write this in an amendment:
(1) Financing Contingency. P 5 of 9. Line 219 change “within 30 days” to “within 38 days”.  Stay with days, and avoid inserting dates. 

Another practice habit is use the method of satisfaction the same as it’s in the Offer. Rather than “Remove contingencies” state that the “Contingency will be Satisfied”.  The intent of getting away from removing contingencies to deeming them satisfied is to remove the cumbersome step of a person performing an action to remove the contingency from the Offer.  Notice that nothing is ever removed under the existing language of the Offer. Satisfied is the term. 

Keeping it simple is simple when we keep the words and phrases as they are written in  the Offer and change only those words or phrases or numbers you want extracted and replaced.  Think like a surgeon. Cut out only what you need and leave the rest. 

Author: Tom Meyer Real Estate Broker, Madison, WI

I believe the difference between an accepted or rejected real estate offer to purchase starts with the drafter's ability to customize the Offer to reflect the Buyer's commitment. Ready, willing, capable, committed, sincere people can out negotiate higher priced offers by moving away from standardized forms. Ask me how.

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