MARCH 2017, 17.03 The Closing of Buyer’s Property Contingency and The Secondary Offer Contingency From a seller’s perspective, the Closing of Buyer’s Property Contingency is perhaps the least desirable contingency to appear in a buyer’s offer. The success or failure of the seller’s transaction is dependent on the buyer’s transaction, which might be dependent on another buyer’s transaction, which might be dependent on another buyer’s transaction, and so on. If just one piece of any of the multiple transactions fails to fall into place, the chain of events leading to the seller’s successful closing is in jeopardy. From the buyer’s perspective, the Secondary Offer Contingency is perhaps the least desirable contingency to include. Success of the secondary buyer’s offer depends on the actions of the seller and the primary buyer. The secondary buyer essentially waits around hoping that the primary offer will fall apart for some reason such as a bad inspection or the primary buyer’s unwillingness to waive the Closing of Buyer’s Property Contingency. Success or failure of these two contingencies rests on the actions of an external third party or third parties. While not always easy to navigate, both contingencies are common and offer important benefits to the parties who use them. Timing, deadlines, delivery and sometimes actual receipt are critical to these contingencies and making sure they function the way the parties intended. Closing of Buyer’s Property Contingency IN THIS ISSUE P1 P4 Closing of Buyer's Property Contingency Secondary Offer Contingency notice, a buyer can waive the contingency and preserve the buyer’s offer as primary or not waive the contingency and lose the property. This contingency is satisfied by the closing of the sale of the buyer’s property and not satisfied by the buyer merely accepting an offer. If the buyer’s property has not closed by the deadline in the contingency and the buyer and the seller wish to continue with the transaction, the parties can use a WB-40 Amendment to Offer to Purchase to change the deadline in the contingency. REALTOR® Practice Tip The Closing of Buyer’s Property Contingency is used most frequently in residential transactions but its use it not limited to residential transactions. The following WB Offers have a preprinted Closing of Buyer’s Property Contingency. • WB-11 Residential Offer to Purchase (Lines 304-311) • WB-12 Farm Offer to Purchase (Lines 521-526) • WB-14 Condominium Offer to Purchase (Lines 387-394) • WB-15 Commercial Offer to Purchase (Lines 471-478) The WB-13 Vacant Land Offer to Purchase, WB-16 Business Offer with Real Estate and WB-17 Business Offer without Real Estate do not have a Closing of Buyer’s Property Contingency, but if suitable for the transaction, a buyer could negotiate such a contingency into the offer. Many buyers want or need to sell an existing property before becoming contractually obligated to purchase a new home. For this purpose, a buyer can use the Closing of Buyer’s Property Contingency. This is a short though somewhat complex contingency in some of the WB offers. This contingency benefits both the buyer and the seller. The buyer does not have to purchase the seller’s property unless the sale of the buyer’s property closes by a date specified in the contingency. If the seller accepts a bona fide secondary offer, the seller can issue a notice to the buyer that the seller has accepted a secondary offer. This notice is commonly referred to as the “bump notice.” After receiving a bump Wisconsin REALTORS® Association Previous Page Page 1 Legal Update, March 2017 Next Page P2 Drafting the Closing of Buyer’s Property Contingency in the WB-11 Residential Offer to Purchase Lines 304-311 of the WB-11 Residential Offer to Purchase o CLOSING OF BUYER'S PROPERTY CONTINGENCY: This Offer is contingent upon the closing of the sale of Buyer's property located at ________________________________ _____________, no later than ______________. If Seller accepts a bona fide secondary offer, Seller may give written notice to Buyer of acceptance. If Buyer does not deliver to Seller a written waiver of the Closing of Buyer's Property Contingency and______________________ ________________________________________ _______________________________________ _______________________________________ _______________________________ [INSERT OTHER REQUIREMENTS, IF ANY (e.g., PAYMENT OF ADDITIONAL EARNEST MONEY, WAIVER OF ALL CONTINGENCIES, OR PROVIDING EVIDENCE OF SALE OR BRIDGE LOAN, etc.)] within ____ hours of Buyer's Actual Receipt of said notice, this Offer shall be null and void. In the WB-11 Residential Offer to Purchase, the Closing of Buyer’s Property Contingency is at lines 304-311. The buyer identifies the property for sale on line 305 and sets a deadline for the sale on line 306. If a buyer is unable to close on the buyer’s property by the deadline set on line 306, the buyer is unable to satisfy this contingency and is not obligated to complete the transaction. When drafting the Closing of Buyer’s Property Contingency, it is important to include a deadline on line 310 for the buyer’s response to a bump notice. An agent should not leave the deadline on line 310 blank. Without a deadline on line 310, neither the buyer nor the seller knows how long the buyer has to decide whether to waive the contingency. If a listing agent receives an offer from a buyer without a deadline on line 310, the agent should discuss with the seller the potential problems that could arise without a deadline for waiving the contingency and offer to address the oversight by preparing a counter-offer to add a deadline. If the parties have already agreed to an offer without a deadline for waiving the contingency, they can use an amendment to add one. If the parties are unable to agree to a deadline using amendments, they may need a court to determine the deadline. REALTOR® Practice Tip Settling a dispute about any contractual ambiguity in the offer may require a lawsuit. For most buyers and sellers, pursuing legal action as part of the sale usually will involve more time and money than either party was intending to spend on the transaction. Contract interpretation has few “black and white” rules. Generally, courts will attempt to create a reasonable solution to address a contractual error or ambiguity. If asked to determine a deadline for a buyer to waive the Closing of Buyer’s Property Contingency, a court would try to determine what a Wisconsin REALTORS® Association Previous Page REALTOR® Practice Tip continued reasonable deadline is. The court may look at market practices to determine what amount of time is usual or customary for the deadline in the Closing of Buyer’s Property Contingency. Common deadlines include 72, 48 and even 24 hours. To avoid putting buyers or sellers in this position, agents should carefully draft contracts to make sure they accomplish the instructions of the parties. The best practice is to complete all blanks in the offer or mark provisions as "not applicable" or "(N/A)" to document the agreement between the parties. If a buyer wishes to negotiate an offer with a Closing of Buyer's Property Contingency but does not wish the seller to have the opportunity to issue a "bump notice," the buyer can delete the bump language in the offer by crossing it out and see if the seller is willing to accept it. Issuing the bump notice A seller cannot try to bump the primary buyer without accepting a bona fide secondary offer. A bona fide offer is one that is genuine and real. For a secondary offer to be a bona fide offer, it does not have to be free from contingencies or be a cash offer. It has to be a legitimate, good-faith offer from an actual buyer intending to purchase the property. The secondary offer does not have to be better than or different from the primary offer and could itself be contingent on the sale of the secondary buyer’s property. Accepting a secondary offer gives the seller the opportunity but not the obligation to issue a bump notice to the primary buyer. Whether to issue a bump notice is always a seller’s decision. Secondary buyers sometimes assume that if the seller accepts a secondary offer, the seller must try to bump the primary buyer. If the seller chooses to issue a bump notice, the seller would use the WB-41 Notice Relating to Offer to Purchase. Issuing a bump notice triggers a buyer’s decision to waive the contingency and remain in the transaction or not waive the contingency and be “bumped” out of the transaction. Responding to the bump notice The buyer’s deadline for deciding whether to waive the contingency is in hours and is on line 310 of the WB-11 Residential Offer to Purchase. The deadline for waiving the Closing of Buyer’s Property Contingency runs from a buyer’s actual receipt of the bump notice from the seller. Actual receipt means that the buyer, not the buyer’s recipient for delivery, has the notice. Regardless of when the notice was delivered, actual receipt does not occur until the primary buyer has actual physical possession of the written notice. Although many timelines in the offer to purchase are triggered when a document or notice is delivered, the hours for the bump notice begin upon actual receipt of the bump notice by the primary buyer. When the buyer receives the bump notice on a WB-41 Notice Relating to Offer to Purchase, lines 38-44 of the WB-41 give the buyer and the agents the opportunity to document when a notice was sent to the receiving party and for the recipient to acknowledge actual receipt. While acknowledging when actual receipt occurs is not mandatory or necessary for the functioning of the contingency, it is useful in avoiding disputes regarding when the buyer’s deadline begins for waiving the contingency. Page 2 Legal Update, March 2017 Next Page P3 Lines 38-44 of the WB-41 Notice Relating to Offer to Purcase ACTUAL RECEIPT If the Offer requires Actual Receipt the following may be completed This Notice was sent to the Receiving Party by ________________________ on _____________ Licensee and Firm for Receiving Party Date at __________a.m./p.m. STRIKE ONE Receiving Party acknowledges Actual Receipt of this Notice occurred on___________________ at ____________ a.m./p.m. STRIKE ONE (x)________________________ Initials of Receiving Party If the buyer chooses to waive the contingency, the buyer delivers a written wavier of the contingency to the seller before the deadline on line 310. The buyer would use the WB-41 Notice Relating to Offer to Purchase to notify the seller of the buyer’s waiver. If there are additional requirements for waiving the contingency on lines 307-308, the buyer’s deadline for complying with those requirements is the same deadline for waiving the contingency on line 310. Additional requirements may include providing to the seller evidence of a bridge loan, additional earnest money, or evidence of the sale of the buyer’s property. If the buyer delivers a notice and any additional requirements by the deadline on line 310, the bump clause is essentially removed from the offer and the seller can no longer terminate the transaction based on the Closing of Buyer’s Property Contingency. Waiving the Closing of Buyer’s Property Contingency Contingencies in an offer to purchase may be waived by the party benefiting from the contingency. A buyer or seller may only waive a contingency that is for that party's benefit. However, a party may not waive a contingency if the waiver would deprive the other party of a benefit under that provision. The Closing of Buyer's Property Contingency benefits both the buyer and the seller. A buyer is protected if the buyer’s home does not sell because the buyer is not obligated to buy the property. Concurrently, the seller has the right to accept secondary offers and proceed with a secondary offer if the primary buyer does not waive the contingency and fulfill any other conditions agreed on in the contingency after receipt of the bump notice. Each party enjoys certain rights and benefits under this contingency, and neither party can unilaterally waive it. If the parties bilaterally agree to waive this contingency, they would use a WB-40 Amendment to Offer to Purchase to remove this contingency. Although the buyer may not unilaterally waive the contingency, if the buyer receives an offer on the buyer’s property, the buyer may notify the seller of the offer. If the buyer has received an offer and perhaps a loan commitment on the buyer’s sale, the buyer could request by amendment that the seller waive the contingency either outright or with conditions such as proof of the offer or evidence of a bridge loan. The seller may or may not agree to the buyer’s amendment since waiving the contingency deprives the seller of the ability to issue a bump notice to the buyer. Other versions of the Closing of Buyer’s Property Contingency There are different versions of the Closing of Buyer’s Property Contingency that appear in company addenda as well as local versions of Addendum A. An agent should read the contingency carefully if it is not the standard version pre-printed in the WB offers. Other versions of the contingency likely modify provisions of the standard version. For example, the REALTORS® Association of Northeast Wisconsin (RANW) Addendum A includes an optional Closing of the Sale of Buyer’s Property Contingency that includes additional provisions such as a buyer agreeing to list the buyer’s property for sale no later than seven days after the seller accepts the buyer’s offer with a named firm for a maximum listing price. Additionally, the buyer can use RANW’s Addendum A to make the buyer’s offer contingent on the closing of the sale of the buyer’s property without a bump clause if the buyer has an accepted offer on the property. If the buyer does not have an accepted offer on the property, the buyer has to check an additional box if the buyer wants to give the seller a bump clause. The process for waiving the contingency in the RANW Addendum A departs significantly from the process in the contingency found in the WB offers. To waive the RANW Addendum A contingency, the buyer has two options. Option #1 is for the buyer to waive the Closing of the Sale of Buyer’s Property Contingency and all financing contingencies making it a cash offer. A buyer choosing Option #1 must also provide written verification from a financial institution or a third party in charge of the buyer’s funds that the buyer has funds sufficient to close. Option #2 is for the buyer to waive the contingency by delivering a copy of the offer on the buyer’s property to the seller. The offer delivered to the seller must have all contingencies other than financing satisfied or removed. The pre-printed Closing of Buyer’s Property Contingency in the Offer is Wisconsin REALTORS® Association Previous Page Page 3 Legal Update, March 2017 Next Page P4 14 lines long. The RANW Addendum A Closing of the Sale of Buyer’s Property Contingency with its component parts is 47 lines long. This is just one example of the significant differences between the pre-printed Closing of Buyer’s Property Contingency as found in the WB offers and an alternate version found in a local Addendum A. REALTOR® Practice Tip When drafting or presenting an alternate version of the Closing of Buyer’s Property Contingency, the agent should read it carefully and compare and contrast its provisions with the pre-printed version of the contingency in the WB offers. By identifying similarities and differences, the agent can explain the advantages and disadvantages associated with using the alternate version of the contingency rather than the pre-printed version. As demonstrated in the review of the RANW Addendum A Closing of the Sale of the Buyer’s Property Contingency, there are fundamental differences in the process and in the required actions in these contingencies. An agent should review the options available for this contingency with the buyer and select the choice that best achieves the instruction of the party. A seller can use a counter-offer to attempt to eliminate the contingency altogether or propose an alternate version. The Secondary Offer Contingency All of the WB offers to purchase have a provision that permits a seller to continue marketing a property after binding acceptance of an offer and to accept secondary offers. Line 28-29 of the Binding Acceptance section in the WB-11 Residential Offer to Purchase provide, “Seller may keep the Property on the market and accept secondary offers after binding acceptance of this Offer.” A seller can continue marketing the property after accepting an offer, and a seller can continue to negotiate with other buyers using the Secondary Offer Contingency. REALTOR® Practice Tip The Secondary Offer Contingency is used frequently in residential transactions, but its use it not limited to residential transactions. The following WB offers have a pre-printed Secondary Offer Contingency. • WB-11 Residential Offer to Purchase (Lines 312-317) • WB-12 Farm Offer to Purchase (Lines 527-531) • WB-13 Vacant Land Offer to Purchase (Lines 405-410) • WB-14 Condominium Offer to Purchase (Lines 395-400) The WB-15 Commercial Offer to Purchase, WB-16 Business Offer with Real Estate, and WB-17 Business Offer without Real Estate do not have a Secondary Offer Contingency, but if suitable for the transaction, a buyer could negotiate such a contingency into the offer. Wisconsin REALTORS® Association Previous Page Drafting the Secondary Offer Contingency in the WB-11 Residential Offer to Purchase Lines 312-317 of the WB-11 Residential Offer to Purchase SECONDARY OFFER: This Offer is secondary to a prior accepted offer. This Offer shall become primary upon delivery of written notice to Buyer that this Offer is primary. Unless otherwise provided, Seller is not obligated to give Buyer notice prior to any deadline, nor is any particular secondary buyer given the right to be made primary ahead of other secondary buyers. Buyer may declare this Offer null and void by delivering written notice of withdrawal to Seller prior to delivery of Seller's notice that this Offer is primary. Buyer may not deliver notice of withdrawal earlier than ______days after acceptance of this Offer. All other Offer deadlines which are run from acceptance shall run from the time this Offer becomes primary. To include a Secondary Offer Contingency, a buyer needs to know that there is a primary offer already accepted by the seller. Licensees can disclose that a seller has accepted an offer, an offer subject to contingencies, or an offer subject to a contingency that has a bump clause. When a buyer is aware that there is already an offer on a property, a buyer can choose to write a secondary offer on the property by including the optional secondary offer contingency in the offer to purchase. Lines 312-317 of the WB-11 Residential Offer to Purchase Wis. Admin. Code § REEB 24.12 Confidentiality of Offers tells licensees what they can and cannot reveal about negotiations between buyers and sellers. • A licensee cannot disclose any of the terms of one prospective buyer’s offer to purchase, exchange agreement or option contract proposal to any other prospective buyer or any person with the intent that this information be disclosed to any other prospective buyer. • Licensees shall encourage all prospective buyers to submit their best offers. • A licensee may but is not required to disclose: • Information known by the licensee regarding the existence of other offers on the property. • That a seller has accepted an offer. • That a seller has accepted an offer subject to contingencies. • That a seller has accepted an offer subject to a clause requiring removal of certain contingencies upon the occurrence of an event such as receipt, acceptance or conditional acceptance of another offer. Page 4 Legal Update, March 2017 Next Page P5 When a buyer submits a secondary offer, a buyer includes a deadline on line 316 before which the buyer will not withdraw the buyer’s secondary offer, essentially creating a “lock-in” provision for the secondary offer. Because the listing agent cannot disclose the length of the bump clause in the primary buyer’s offer, deciding on the length of time to put in for the lock-in provision on line 316 can be a bit of a guessing game. Most agents are familiar with what is customary and usual for a bump clause in their area and can discuss with the secondary buyer what a reasonable deadline will be for the lock-in provision. If the agent guesses wrong and makes the deadline too short for the seller to issue the bump notice and determine the primary buyer’s response, the listing agent can counter the secondary offer to try to achieve a deadline that is more suitable to the seller’s transaction. With a secondary offer, the buyer is agreeing not to withdraw the secondary offer before the expiration of the lock-in provision on line 316. When drafting an offer for a buyer in secondary position, the licensee will want to explain this lock-in period. Usually during this period, a secondary buyer is hoping that the seller will issue a bump notice to the primary buyer and that the primary buyer will not waive the contingency allowing the seller to bump the primary buyer and elevate the secondary buyer. A licensee drafting a secondary offer for a buyer should discuss with the secondary buyer that though the secondary offer may cause the seller to issue a bump notice, the seller is not obligated to try to bump the primary buyer. Additionally, the secondary buyer should be aware that there is no priority among secondary offers and the seller is able to elevate any secondary offer the seller so chooses regardless of the terms or when it was submitted. Can A Licensee? Can a licensee disclose to a buyer terms such as price and closing date from another buyer’s offer? No! Can a licensee encourage a buyer to submit the buyer’s best offer? Yes! Can a licensee disclose that the seller has accepted an offer? Yes! Can a licensee disclose that the seller has accepted an offer subject to a contingency? Yes! Can a licensee disclose that the seller has accepted an offer subject to a contingency with a bump clause? Yes! Can a licensee disclose that the seller has accepted an offer contingent on the sale of the buyer’s home? No! Can a licensee disclose that the seller has accepted an offer with a 72-hour bump clause? No! A licensee can disclose generally that a seller has an accepted offer with a contingency but not the nature of the contingency. A licensee can disclose that a seller has accepted an offer with a bump clause but not the length of the bump clause. Wisconsin REALTORS® Association Previous Page REALTOR® Practice Tip A buyer can draft a secondary offer to include a priority clause or even a provision that would prohibit the seller from accepting other secondary offers. A priority clause is an additional provision that would require a seller who accepts that secondary offer to elevate that secondary offer with the priority clause to primary position ahead of all other secondary offers if it became possible for the seller to elevate a secondary offer. For alternative versions of the Secondary Offer, see Wisconsin Real Estate Clauses — Contingencies and Other Standard Provisions, 2012 Edition. If the seller has not elevated the secondary buyer to primary position before the deadline in the Secondary Offer Contingency, the secondary buyer can withdraw the secondary offer or choose to stay in secondary position. Once the deadline in the Secondary Offer Contingency passes, the secondary buyer is free to remain in secondary position or withdraw the secondary offer at any time. When a listing agent is working with a seller who has a primary buyer with a Closing of Buyer’s Property Contingency and a secondary buyer, the licensee must use the deadlines in the two different contingencies to the seller’s advantage. Example #1 A seller accepts a primary offer with a Closing of Buyer’s Property Contingency and a 72-hour deadline for the primary buyer to waive that contingency if the seller issues a bump notice after accepting a secondary offer. On March 23, the seller accepts a secondary offer where the buyer agreed not to withdraw the secondary offer for two days after acceptance. Because the secondary offer was accepted on March Page 5 Legal Update, March 2017 Next Page P6 Encouraging secondary offers 23, the secondary buyer is agreeing not to withdraw the secondary offer until March 26. Many agents think about using secondary offers in the context of a seller who has already accepted a primary offer contingent on the closing of the buyer’s property. A seller with an offer contingent on the closing of the buyer’s property needs to accept a secondary offer to be able to try to bump that primary buyer. Other sellers can also benefit from accepting secondary offers. The seller issues a bump notice to the primary buyer. The primary buyer actually receives the notice at 4:00 p.m. on March 23. If the primary buyer wants to remain in primary position, the primary buyer must waive the Closing of Buyer’s Property Contingency by 4:00 p.m. on March 26. At 9:00 a.m. on March 26, the secondary buyer decides to withdraw the secondary offer. The primary buyer does not waive the Closing of Buyer’s Property Contingency by 4:00 p.m. on March 26. The seller went from having two offers to zero offers. There are many factors that could cause the primary offer to fall apart including a bad inspection, a low appraisal, or perhaps a buyer who decides on a different property and wants to terminate the transaction. Many buyers, especially buyers not represented by agents, are not aware of the secondary offer process or even the possibility of a secondary offer. Frequently, when buyers contact agents about a property, they are told that there is already an accepted offer on the property and the buyers assume that is the end of negotiation possibilities on that property. For many sellers, encouraging secondary offers is in their best interest. Without knowing what secondary offers are possible, the seller may not be able to make the most informed decision about how to proceed with a primary offer. To avoid this result, the listing agent could have discussed countering the secondary offer to extend that lock-in provision for longer than the primary buyer’s deadline for waiving the contingency. If the seller had countered the secondary offer to make the lock-in period three days after acceptance, the secondary buyer would not have been able to withdraw the offer until on March 27. By delaying the first time that the secondary buyer could withdraw the offer, the seller would have enough time to issue the bump notice and see if the primary buyer was going to waive the contingency to stay in primary position or get bumped out of the transaction. If the primary buyer did not waive the contingency by 4:00 p.m. on March 26, the seller at that time could have elevated that secondary offer to primary position. GROW YOUR BUSINESS The early stages of a real estate transaction involve many concurrent events, often with short timelines. 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Wisconsin REALTORS® Association Previous Page Page 6 Legal Update, March 2017 Next Page P7 to solicit secondary offers so the seller knows exactly what negotiation leverage the seller has when responding to the results of the buyer’s home inspection. Even later in the transaction, if a buyer is working through financing or an appraisal, letting a buyer submit a secondary offer is not detrimental to the seller and can give the seller some options if the seller needs to respond to the buyer’s financing unavailability or a low appraisal. If the seller is not interested in maintaining a channel of ancillary negotiations, the seller can reject any secondary offers. Example #2 Example #1 Resources A seller accepts an offer that is almost at list price with an inspection contingency that gives the seller the right to cure. A few days later, a buyer submits a secondary offer that is above list price with some contingencies. If the primary buyer issues a notice of defects, the seller can choose to cure the defects and continue going forward with the primary buyer, or the seller could refuse to cure the defects making that offer null and void. With the primary buyer out of the way via the inspection contingency, the seller can now elevate the secondary offer to primary position and move forward with a more beneficial offer. EDITORIAL STAFF Author A seller accepts a primary offer that has a home inspection contingency. After the inspection, the buyer proposed an amendment requesting a lower purchase price. If there are not any secondary offers, the seller may feel obligated to accept the amendment or risk the buyer issuing a notice of defects. If there are secondary offers with favorable terms, the seller may want to force the buyer to issue a notice of defects making the offer null and void if there was no right to cure or triggering the seller’s right to cure if there was a right to cure. WRA LegalTalks video, "Closing of Buyer’s Property Contingency and Secondary Offers," with Jennifer Lindsley at www.wra.org/ LegalTalks/BuyerContingency. Jennifer Lindsley Production Lauren B. Hubbard ASSOCIATION MANAGEMENT Chairman Erik Sjowall President & CEO Michael Theo, CAE CONTACT INFORMATION Wisconsin REALTORS® Association 4801 Forest Run Road, Suite 201 Madison, WI 53704 608-241-2047 800-279-1972 LEGAL HOTLINE Ph: 608-242-2296 Fax: 608-242-2279 Web: www.wra.org The information contained herein is believed accurate as of March 1, 2017. The information is of a general nature and should not be considered by any member or subscriber as advice on a particular fact situation. Members should contact the WRA Legal Hotline with specific questions or for current developments. Reproduction, use or inclusion of this material in other publications, products, services or websites is not permitted without prior written permission from the WRA or its Legal Department. 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