Buyers Feeling Squeezed in This Market, or "What is an Escalation Clause"?

With multiple offers, lowered inventory, and 15 minute showings, buyers have been under considerable competition and pressure so far in 2021.  In order to "weed out" the offers, sellers have been making certain requests, or buyers with several times losing out experiences have voluntarily been relinquishing their standard contingencies.  How?  By upping their offer price (even $100,000 over list price), shortening physical inspection time periods (i.e., 17 day to 10 days, or less), removing appraisal contingencies (putting their deposit at risk if they back out over a low appraisal), as examples.  

Another form of competition is an "escalation clause".   This is where the buyer offers, or the seller counter offers, to automatically increase the price by a certain amount, say $1,000, over any other offer. Of course, without any other language added, the buyer could be forced into paying $1,000 over another bidder offering $50,000 over list price--can the buyer really afford that? Well, what if the buyer puts in a "not to exceed" a certain price?  But now the seller know that buyer's maximum bid, and could use it as leverage to obtain higher amounts from other buyers.

If the buyer offers a "floor price" or $1,000 over the highest offer, the buyer may end up paying a higher price if no other offer matches the buyer's floor price.

To not blindly make offers using one of the above methods, the buyer should include language in their offer or counter offer that "the buyer  receive a copy of the highest offer (upon acceptance) and that the buyer has a right to contact that other buyer or their agent to verify that they made a bona fide offer," or words to that effect.

But California Association of Realtors cautions buyers about making offers with escalation clauses, stating that the enforceability of such offers is not 100% assured, and the buyer is advised to obtain legal advice prior to making such an offer.

For a the complete Guide, please contact me by phone or email.

Julia Huntsman, REALTOR, Broker | www.juliahuntsman.com | 562-896-2609 | California Lic. #01188996

Dear Buyer: Did Your Offer Get Presented to the Seller?

In the current climate of multiple offers submitted by anxious buyers, circumstances on some properties may lead a buyer to wonder if the seller was ever made aware of his or her offer.

First of all, unless the seller has waived in writing, all offers are supposed to be presented to the seller--this is the listing agent's fiduciary duty to the client--whether verbally, in writing, or in person by the listing agent or in person by the buyer's agent.  But in today's world, the buyer's agent does not usually personally present to the seller, and the buyer relies on the listing agent's word that their offer was presented.  Through the end of 2018, there is no ethical or legal requirement for a listing agent or the seller to respond in writing or otherwise to a buyer's offer. It is regarded as a courtesy.

But starting January 1, 2019, there is a new requirement. Per a new Code of Ethics requirement by National Association of Realtors, " a listing broker or agent is required to confirm in writing that an offer was submitted to the seller if the cooperating broker who submitted the offer so requests. The listing broker or agent must provide the written affirmative unless the seller has waived  the obligation to have the offer presented."  So, 1) the buyer broker must request confirmation (there are several ways to do this), as long as 2) the seller has not already waived the obligation to have the offer presented.  The seller does have the option of waiving offers (best put in writing with the listing agent) if the seller wishes to avoid offers under a certain price, or with certain conditions he/she does not want to meet, i.e., a longer escrow period.  Sometimes under these circumstances, the buyer may decide to rewrite an offer in order to get the seller's attention.  Otherwise, if the buyer's agent requests it, the listing broker, or listing agent, will be required to submit confirmation in writing that the offer was presented, and this is most often done by checking and signing for a box on the offer form.

If you would like to know more about making an offer to a seller, please contact me!  There are many aspects to the offer forms via the California Association of Realtors, and early familiarity with them will make your transaction easier and smoother.



Julia Huntsman, REALTOR, Broker | www.juliahuntsman.com | 562-896-2609 | California Lic. #01188996