Real estate can be a tricky business. Recently I listed a home that was part of a probate. The administrator lived on the east coast and we decided to collect all offers by a certain time on a certain date. The plan was that I would email all of the offers to my client. She would review them overnight and we would convene via conference call Thurs. morning to decide how to respond to the offers. I made this all clear to everybody who expressed an interest in the property. On the appointed day we got 4 offers. Two other agents had also expressed an interest, so I called them back to see if their clients were still interested or if they had decided not to proceed. One client had backed off, but the other agent (agent X) said his client was still interested but they couldn't meet to write up the offer until that evening. I told him to go ahead and get it to me Thursday morning so we would consider it along with the offers we had already received. Fast forward to Thursday morning. I have no phone message and no email from agent X, so I called him to see if his clients had written an offer. He responded that they decided not to. So, my clients and I reviewed the offers in hand. As is the norm in this area, the offers were "clean," meaning either all cash (with evidence of funds provided with the offer) or preapproved with no contingency for financing, no contingencies of any kind, "as is" and a fast (10 day) close of escrow. My client decided to accept the highest offer at the price offered, but with a small counter asking for a slightly longer escrow to give the tenants time to over out. So far, so good. We sent the counteroffer to the buyer, who was thrilled and ready to sign, when the phone rang. It was agent X to say his clients had decided to write an offer after all and they really, really wanted the house and could do it right away and all he needed was a figure that would guarantee that they would get it!! Well, first of all we already had a counter out, and if the buyer signed and sent it back (which they were already in the process of doing) the house would already be sold. If my clients wanted to work with this new buyer, they would have to rescind the counteroffer immediately and get some acknowledgement from the buyer that they received the rescission, before accepting another offer. Secondly, we had signed a confidentiality agreement, agreeing not disclose the price and terms of the offer we were working with prior to close of escrow. But agent X stated that we wouldn't have to actually disclose the price of the other offfer, just give them a price that is higher. He insisted that I call my client to let her make the decision. Fair enough. Fortunately I have a sensible seller. It was a no brainer for her. She noted that these new buyers had already changed their minds twice and there was no guarantee that they wouldn't do so again, whereas the people she had sent the counter to had stepped up to the plate without hesitation and they obviously really wanted the house too. The price they offered was very good (competing offers, don't forget.) She was happy and did not want to risk losing a solid, committed buyer for a "flakey" (her words, not mine) buyer. Another seller may have reacted differently. Having a buyer ask for the price they needed implies they will go even higher than any of the other offers. A greedy seller may have been willing to take that risk. But it is a big risk with the potential for a big lawsuit down the line. First, the previous buyer may refuse to acknowledge the rescission and send back the signed counteroffer instead. Now what do you do? You would have to prove that they received the rescission in the first place and then signed and returned the counter after they received it. Secondly, even if they acknowledged the rescission, they would be hopping mad and maybe walk away even if the new offer doesn't pan out, and thirdly, there is no guarantee that agent X's clients will come in with the price and terms requested. So, the seller could end up losing a perfectly good buyer and gaining a less desirable buyer. What would you have done? Every seller wants the best price and the best terms they can get. But there is a no man's land between the time a counteroffer is sent out and the time it is signed and returned, or rejected. My client took the safe route and stayed with what she had. She even sent me a written instruction that she did not want to look at any other offers unless something happened with the one she was working on and it did not go forward as expected. The price she received is at the high end of what she was hoping for. She is happy, and she doesn't have to worry about potential lawsuits down the line. What would you do in the same situation? | 
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• Jul. 24, 2008 - RE: Conteroffer Limbo: How would you handle this?