What is a back-up offer in real estate? A backup offer is a secondary offer to an offer that’s in “first position” called the primary offer. If the initial deal (the primary offer) falls through, then they can accept this backup agreement to make sure they get their dream home.
What could cause a deal to fall through? If a contingency in the primary contract cannot be satisfied. See this blog article on contingencies.
But I need to find a house! I can’t just sit around waiting and hoping that the primary offer falls through! If my back-up (secondary) offer is accepted by the seller, does it prevent me from making offers on other properties?
Making a back-up offer does not “lock you in” to just that one property. If you use the correct contract language, you can continue to look at other houses and enter into a contract to purchase a different house. A back-up offer is there “just in case” the primary offer falls through. Then, you have the option of continuing with that secondary offer or not.
Why Would a Seller Want to Accept a Back-Up Offer?
Sellers like back-up offers for two main reasons. (1) It puts pressure on the buyer in primary position. The buyer in primary position is less likely to try to re-open negotiations after inspections. (2) It can help the seller avoid advertising as a “Back On The Market” listing if the deal in first position falls through for some reason. When a seller’s property goes “Back On The Market” it can create questions in the minds of buyers who will inevitably ask “What went wrong?” or “Is there something wrong with the property?” This can create a cloud over the property that can definitely effect the price the seller is able to get for the property. Momentum is key in the purchase process of a home and a seller should be motivated to “keep the momentum” going toward a sale.
What Does Contract Language for a Back Up Offer Look Like?
Backup (Secondary) Offer Clause(s)
Sellers are presenting this counteroffer as a back-up (secondary) to an existing purchase contract which shall be referred to as the “primary contract.” The terms of Buyer’s offer are accepted with the following modifications and/or additions:
1. Sellers are presently in contract. This counteroffer, if accepted by Buyers, shall be a back-up (secondary) contract to the existing primary contract, which is scheduled to close on or before ___________. If for any reason, the primary contract is terminated, Sellers will provide written notice to Buyers and upon delivery of that notice to Buyers’ agent, they will be considered the primary contract.
2. Sellers reserve the right to make modifications and/or additions to the terms and conditions of the primary contract, which shall not in any way affect Buyers’ position as the backup (secondary) contract. The Buyers’ deposit check shall be due and payable within 24 hours of Buyers receiving written notice that they have moved from backup (secondary) position to primary position.
3. All time periods specified in the contract regarding inspections will not begin until Sellers deliver to Buyers written notice that they have moved from secondary positions to primary position.
4. The Buyers acknowledge that they are the backup (secondary) contract, however, they reserve the right to terminate this contract without any liability any time prior to their receipt of written notice from the Sellers putting them in primary position.
Conclusion
Using a back-up offers in real estate is just another tool in the tool box for savvy buyers who want the most value out of the purchase of their home.
