Realtor® Legal Tip – Can you accept the offer after it has expired?
February 12, 2018
Author: Curtis Bullock
This one has come up a few times lately. Let’s suppose the Buyer makes an offer and in section 25 of the REPC the Seller is given until the next day at 5pm to Accept the terms. The 5pm deadline comes and goes and the Seller doesn’t respond. Two days later, the Buyer’s agent receives a phone call from the Seller’s Agent who says, “my Seller has agreed to the terms and has signed and accepted the offer. I’ll send you a copy of the signed REPC in just a few minutes.”
Are there any potential problems here?
Yes, there could be. The time given for Acceptance in section 25 of the REPC expired. Since that deadline lapsed, the offer was automatically revoked. So from a legal standpoint it is no longer on the table. Once that happens, the Seller does not have the legal ability to accept. So in actuality, when the Seller sent back an “Acceptance” that really was a counteroffer because all the terms of the original offer were not complied with.
Having said all that, there is a simple way to resolve the problem and make this deal happen. Ultimately you have a willing Buyer and Seller who want to proceed with the deal.
The solution is simple. Attach an addendum to the REPC and have the Seller and Buyer acknowledge that the Acceptance deadline had expired, but that both parties agree to all the terms and that the contract is in full force and effect.
Another solution would be for the Seller to simply counter the original offer and in the counter insert an entirely new Time for Acceptance. This would not be an “extension” of the original Time for Acceptance (because that time has expired), but rather an entirely new deadline within which the buyer could accept. Even though its a bit redundant, a simple statement that says, “all other terms and conditions are accepted” could be inserted into the counter just to reiterate the fact that the REPC is acceptable.
Fixing the problem this way by identifying the issue in an addendum (or counteroffer) and then having the Buyer and Seller agree to move forward will prevent either party from trying to use this “loop hole” as an excuse to back out at a later date.
The bottom line is to simply address the issue on either an addendum or counter offer.
Remember, deadlines matter!
(This legal tip is not intended to represent specific legal advice. Consult your broker or attorney for advice for your specific situation).