Can a home seller consider other bids after accepting a conditional offer?
The short answer is yes, but you have to be cautious.
A seller can consider additional offers even after signing a conditional offer. This is because the sale is not final and binding on both parties until all the conditions in that offer have been either fulfilled or waived. Sellers may also want the security of an alternate offer in case the first one does not proceed.
Before you sign a conditional offer, it is important to know that there are particular ways to give yourself more flexibility to entertain other offers. Sellers or buyers may do this by including an “escape clause” in the first sale agreement.
An escape clause requires you to notify the first buyer if you accept another offer, and gives them a period of time (for example 24 or 48 hours) to either waive or fulfil the conditions on their own offer, commonly referred to as becoming firm.
“Provided further that the Sellers may continue to offer the property for sale and, in the event that the Seller receives another Offer satisfactory to the Seller, the Seller may so notify the Buyer in writing by delivery to the Buyer personally or in accordance with any other provisions for the delivery of notice in this Agreement of Purchase and Sale or any Schedules thereto. The Buyer shall have 24 hours from the giving of such notice to waive these conditions by notice in writing delivered to the seller personally or in accordance with any other provisions for the delivery of notice in this Agreement of Purchase and Sale or any Schedules thereto, failing which this Offer shall be null and void, and the Buyer’s deposit shall be returned in full without deduction.”
Whether you use this approach or not, I’d suggest that either you or your representative (if you have one) confirm that the second sale agreement you sign has some form of condition based on the first agreement not becoming firm and binding by a specified time.
You should know that such discussions at the negotiation stage may affect the buyer’s motivation to continue to make an offer. Discuss this with your real estate agent to help make an informed decision.
I’d also highly recommend consulting with a lawyer that is insured to practice real estate law to make sure that the “escape” clause is properly drafted to protect your interests.
So, what happens if the first buyer fulfils or waives their conditions within the deadline stated in the offer? You as the seller would then be obligated to sell your home to that first buyer under the original terms of the offer.
However, if the first buyer doesn’t fulfil or waive their conditions, discuss with your lawyer whether the first deal has become null and void and you can go through with the sale to the second buyer. Work with your real estate agent and lawyer to make sure all is in order before proceeding.
Lastly, if you are entertaining multiple offers, be careful to include the appropriate terms and conditions in each agreement to avoid selling your home to two parties at once.
This is why it is ideal to protect yourself with provisions in an agreement that specify your right to look at other offers after you’ve accepted a conditional offer. The buyer, meanwhile, would want a “right of first refusal” clause in the agreement. This gives them the flexibility to waive or fulfil conditions to finalize the sale.
As always, these are simply general thoughts about what could happen. Always discuss your specific situation with your agent and real estate lawyer. You can also visit www.reco.on.ca for more information and resources.
This article is for general information purposes only and is not meant as legal or professional advice on real estate transactions.
Joseph Richer is Registrar of the Real Estate Council of Ontario (RECO). He is in charge of the administration and enforcement of all rules that govern real estate professionals in Ontario. You can find more tips at reco.on.ca, follow on Twitter @RECOhelps or on YouTube at http://www.youtube.com/RECOhelps.
