Accepting, Rejecting, Counter
January 7, 2019
Author: Curtis Bullock
Realtor® Legal Tip – Properly accepting or countering an offer. (Combined with the one below)
Suppose the Buyer makes an offer using the REPC. The Seller is happy with most of the terms of the offer except she would like the Settlement deadline moved up a week. The Seller signs page 6 of the REPC and checks the “Acceptance” box and then sends it back to the Buyer with a Counteroffer attached that includes the new Settlement deadline. Are you under contract? Or, is this a counter offer?
Since the counter was simultaneously sent back to the buyer with the REPC, it’s most likely a counter offer and you are most likely not under contract yet. Either way, both sides could argue this one.
The thing to remember is that if you are changing even one thing on an offer, it cannot be an acceptance. So it was incorrect for the Seller to check the “Acceptance” box on page 6 of the REPC. Instead, the Seller should have checked the “counter offer” box on page 6 of the REPC and then sent the counter offer sheet along with the REPC back over to the Buyer. At that point the Buyer could accept, counter or reject the Seller’s counter (i.e., the changed Settlement deadline). All the other stuff in the offer not changed by the counter remains the same and is accepted.
Realtor® Legal Tip – properly responding to offers and counter offers so that there isn’t confusion or a disagreement later. (Combined with the one Above)
The issue of how to respond to an offer or counter offer continues to come up so this legal tip will summarize the best way to handle it. This further explains the legal tip from December 12, 2018 (Immediately Above) so take a look at that before reading any further.
The problem that I see keep coming up happens when the REPC is checked “acceptance,” but the Addendum that comes with the REPC as part of the offer is marked “counter offer” or “rejection.” Doing this can create ambiguity later on.
If the offer includes the REPC and one or more addenda, and the other party is not in agreement with 100% of the terms of the offer including everything contained on an attached addendum, then the party responding to the offer should counter the last page of the REPC AND also mark “counter offer” on any included addenda as well.
The thing to remember, is that when an offer comes in on the REPC with an addendum attached, this is legally all part of one offer. Although the REPC and the Addendum are physically on separate documents, they shouldn’t be dealt with individually. Rather, they should be viewed as one entire offer and responded to in a consistent way.
To put it another way, if page 6 of the REPC is marked “acceptance” then any addenda that came with the REPC must be marked “acceptance.” Assuming the party was accepting the entirety of the offer.
If there isn’t an acceptance, then page 6 of the REPC must be marked “counter offer” and any addendum must also be marked “counter offer.” Or, if the offer was being rejected outright, then page 6 of the REPC should be marked “rejection” and any addendum should also me marked “rejection.”
Consistency with how the documents are responded to is important so there isn’t confusion later on in the transaction.