The Basics of Making an Offer

A written proposal is the foundation of a real estate transaction. Oral promises are not legally enforceable when it comes to the sale of real estate. Therefore, you need to enter into a written contract, which starts with your written proposal. This proposal not only specifies price, but also all the terms and conditions of the purchase. For example, if the seller offered to help with $2,000 toward your closing costs, make sure that's included in your written offer and in the final completed contract, or you won't have grounds for collecting it later.

REALTORS® have standard purchase agreements and will help you put together a written, legally binding offer that reflects the price as well as terms and conditions that are right for you. I will guide you through the offer, counteroffer, negotiating and closing processes. In North Carolina certain disclosure laws must be complied with by the seller, and I will ensure that this takes place.

If you are not working with a real estate agent, keep in mind that you must draw up a purchase offer or contract that conforms to state and local laws and that incorporates all of the key items. State laws vary, and certain provisions may be required in your area.

After the offer is drawn up and signed, it is usually presented to the seller by the seller's real estate agent.

What is in an Offer?

The purchase offer you submit, if accepted as it stands, will become a binding sales contract (known in some areas as a purchase agreement, earnest money agreement or deposit receipt). So it's important that the purchase offer contains all the items that will serve as a "blueprint for the final sale." The purchase offer includes items such as:

  • address and the legal description of the property
  • personal property that conveys with the sale, or, afixed property that does not convey 
  • sale price
  • terms: for example, all cash or subject to you obtaining a mortgage for a given amount
  • seller's promise to provide clear title (ownership)
  • target date for closing (the actual sale)
  • length of due diligence period and amount of due diligence fee
  • amount of earnest money deposit, typically presented to listing firm at close of due diligence period.
  • method by which real estate taxes, rents, fuel, water bills and utilities payments are to be adjusted (prorated) between buyer and seller
  • provisions about who will pay for title insurance, survey, termite inspections, etc.
  • type of deed to be given a time limit (preferably short) after which the offer will expire
  • contingencies, which are an extremely important matter and that are discussed in detail below

Due Diligence

Under the new NC Offer to Purchase and Contract (effective 1/1/2011), a buyer has a negotiated period of time to conduct their due diligence.  During this time period, a buyer must do their due diligence on the property and decide whether to move forward.  This includes inspections and agreement on repairs, loan application and approval, appraisal, title search, surveys, and any questions or research necessary regarding insurability, HOA issues and zoning issues.

 

Negotiating Tips

You're in a strong bargaining position, that is, you look particularly welcome to a seller, if:

  • you're an all-cash buyer
  • you're already have a preapproved mortgage and you don't have a present house that has to be sold before you can afford to buy
  • you’re able to close and take possession at a time that is especially convenient for the seller

In these circumstances, you may be able to negotiate a greater discount from the listed price.

On the other hand, in a "hot" seller's market, if the perfect house comes on the market, you may want to offer the list price (or more) to beat out other early offers.

It's very helpful to find out why the house is being sold and whether the seller is under pressure. Keep the following considerations in mind:

  • every month a vacant house remains unsold represents considerable extra expense for the seller
  • if the sellers are divorcing, they may want to sell quickly
  • estate sales often yield a bargain in return for a prompt deal

Due Diligence Fee & Earnest Money 

The due diligence fee is a negotiated amount that is given to the seller at the time of offer.  If you move forward with the purchase at the end of the due diligence period, this fee gets credited toward the purchase price.  If you do not move forward, the seller keeps the due diligence fee as compensation for the due diligence period.  Earnest money is a deposit most often made at the close of the due diligence period, to show your earnestness and financial capability to complete the transaction.The listing firm or an attorney usually holds the deposit, the amount of which varies from community to community, but is most often 1% to 3% of the contract price. This will become part of your down payment and is credited to you at closing.

Buyers: the Seller's Response to Your Offer

You will have a binding contract if the seller, upon receiving your written offer, signs an acceptance just as it stands, unconditionally. The offer becomes a firm contract as soon as you are notified of acceptance. If the offer is rejected, that's that - the sellers could not later change their minds and hold you to it.

If the seller likes everything except the sale price, or the proposed closing date, or the basement pool table you want left with the property, you may receive a written counteroffer including the changes the seller prefers. You are then free to accept it, reject it or make your own counteroffer. For example, "We accept the counteroffer with the higher price, except that we still insist on having the pool table."

Each time either party makes any change in the terms, the other side is free to accept, reject or counter again. The document becomes a binding contract only when one party finally signs an unconditional acceptance of the other side's proposal.

Buyers: Withdrawing an Offer

Can you take back an offer? In most cases the answer is yes, right up until the moment it is accepted, or even in some cases, if you haven't yet been notified of acceptance.

Sellers: Calculating Your Net Proceeds

When an offer comes in, you can accept it exactly as it stands, refuse it (seldom a useful response) or make a counteroffer to the buyers with the changes you want. In evaluating a purchase offer, you should estimate the amount of cash you'll walk away with when the transaction is complete. For example, when you're presented with two offers at the same time, you may discover you're better off accepting the one with the lower sale price if the other asks you to pay points to the buyer's lending institution.

Once you have a specific proposal before you, calculating net proceeds becomes simple. From the proposed purchase price you can subtract the following costs:

  • payoff amount on present mortgage
  • any other liens (equity loan, judgments)
  • broker's commission
  • legal costs of selling (attorney)
  • transfer taxes
  • unpaid property taxes and water and other utility bills
  • if required by the contract: cost of survey, termite inspection, buyer's closing costs, repairs, etc.

Your present mortgage lender may maintain an escrow account into which you deposit money to be used for property tax bills and homeowner's insurance. In that case, remember that you will receive a refund of money left in that account, which will add to your proceeds.

Sellers: Counteroffers

When you receive a purchase offer from a would-be buyer, remember that unless you accept it exactly as it stands, unconditionally, the buyer is free to walk away. Any change you make in a counteroffer puts you at risk of losing that chance to sell.

Who pays for what items is negotiable. You can negotiate with the buyer any agreement you want about who pays for the following costs:

  • termite inspection
  • survey
  • buyer's closing costs
  • points paid to the buyer's lender
  • buyer's broker fees
  • repairs required by the lender
  • home protection policy

You may feel some of these costs are none of your business, but many buyers - particularly first-timer buyers - are short of cash. Helping them may be the best way to get your home sold.