BACK UP OFFER, ALWAYS WITHDRAW YOUR BACK-UP OFFER BEFORE SUBMITTING ANOTHER OFFER

If you represent the buyer, our policy is that you do not also represent a prospective “back-up” offer.  Refer it out!

BACK UP OFFR:  DO I HAVE TO DISCLOSE THAT WE HAVE ACCEPTED A BACK UP OFFER? 

Q: I represent seller. We are UCB and during Inspection period. I have a signed notification from seller that property is ok to show. It is shown and buyer who is also an agent states he will be sending a back up offer using the additional clause addendum so all covered there. Should we reach agreement of back up offer am I required to notify the first buyers agent that we have a backup offer. I don’t think it’s a requirement. I’m asking bc first offer is subject to appraisal and if appraisal is lower my sellers aren’t coming down on price.  Do I have to disclose the back up offer the first position offer?

A: No, it is not a requirement to disclose that you have a back up offer. That being said, if you are able to leverage that disclosure to your clients advantage in some way, then you would want to disclose.  The final decision is up to your client.  JT

BACK UP OFFER, ONE STRATEGY COULD BE TO SUBMIT OFFERS USING THE “MULTIPLE OFFER FORM”, BUYER WILL BE ABLE TO COUNTER SIGN THE OFFER TO RATIFY….

BACK-UP OFFER, ADJUST COE DATE:   WATCH YOUR DATES!                                                                                                                                                   “COE DATE ON PURCHASE CONTRACT WIIL BE ADJUSTED TO 30 DAYS PAST THE NOTIFICATION  DATE  THAT FIRST CONTRACT HAS CANCELLED AND BUYERS ARE NOW IN THE FIRST POSITION.”

BACK-UP OFFER NOW IN FIRST POSITION (SELLERS WRITTEN NOTICE) LANGUAGE

I have an offer in backup position and was told we are moving into first position. What paperwork is required to make us the primary buyer and not in backup anymore? Thank you!

Hi Rena.  The BACK-UP Clause Language says "The date of sellers written notice to buyer shall be deemed the date of contract acceptance for purposes of all applicable Contract time periods."   The "Sellers Written Notice" is the documentation and notice that you are now in the first position.  Make a copy of that and upload into your transaction file along with the other required documents.   JT

Rena, I would be a little more formal and complete, for example, 

“Consider this to be your notice from the seller that the prior contract for 123 Main Street has been cancelled and your  back-up contract is now in the first position. Please open escrow immediately and have us copied on the escrow receipt"....OR….

“Seller & Buyer acknowledge and agree that back-up offer has been notified that prior offer has cancelled and back-up offer is now in the first position.”  Please open escrow immediately and have us copied on the escrow receipt.”

BANKRUPTCY, LISTING, BANKRUPTCY OR FORECLOSURE:  Q: I may be getting a listing but there are some special circumstances which, if I get some answers may be helpful for me...Is a homeowner required to make their payments while in a chapter 7 bankruptcy?  If so, what happens if they do not?  What is the process the lender does if they don't make their payments?  Are there any special steps that must happen or can a lender just initiate a foreclosure? 

A: Bankruptcy courts typically control the assets being contested including the real estate, so that is a legal question the client should ask their bankruptcy attorney.

A: If a homeowner stops making their mortgage payments, the lender can/will send a notice of default after 30 days at their discretion.  Seller should contact their lender to see if anything can be worked out, otherwise, lender may initiate foreclosure proceedings typically after the delinquency reaches 90 days.  Make sure the seller reaches out to the lender and their legal and/or tax adviser regarding any specific actions and timelines.  (Can be up to 120 days, 30 days plus 90 days…)

BINSR:   ONE BITE AT THE APPLE (single notice) Section 6j of the pc reads as follows:

6i. 260.    Inspection Period Notice: Prior to expiration of the Inspection Period, Buyer shall deliver to Seller a signed notice of any items

     261.    disapproved. AAR’s Buyer’s Inspection Notice and Seller’s Response form is available for this purpose. Buyer shall conduct all

     262.    desired inspections and investigations prior to delivering such notice to Seller and all Inspection Period items disapproved shall be

     263.    provided in a single notice.

 

BINSR, RECEIPTS:  SEE RECEIPTS:

 

BINSR:  Q:  Painting after roof repairs...Seller agreed to hire the buyers roofer to make repairs on the roof and rotted facia board based on the buyers roofers bid.  Work has been completed by said roofer and paid for.  Roofer replaced facia but did not paint it.  Painting it was not in the request nor worded in the BINSR as requested.  Buyers agent said that the house is not in substantially the same condition because it is raw wood.  Seller says he agreed to the roof repairs and there was no request for the facia to be painted.  Buyers agent said she is going to call it out on the final walk.  Sellers have already moved out.  Scheduled to close this Thursday.  Question- is she right and this constitutes not being in the same condition and the seller MUST paint it?  If seller refuses to paint it, what is buyers recourse?

A: Hi Toni, this scenario is a bit ambiguous, but I would say that the Buyer has a better argument than the Seller has.  What the other agent said is correct, when the house went under contract the fascia boards were painted so after the repair, they should be brought back to the same condition.  I can understand the Sellers thinking that it wasn't specifically pointed out in the request, but it can also be argued that painting to match is inherent to the repair.  If it's called out on the final walk through, and the Seller chooses not to fix it, the Buyer could possibly cancel the contract, or they could close the escrow and try to pursue the Seller after the fact.  Who knows what route they'll go, but those are basically their options.  It's not 100% black and white, but I think the Buyer would ultimately prevail if push came to shove.

BINSR, REQUIRED WHEN BUYER WAIVES INSPECTION?  In the purchase contract the buyer waived their inspection period. That’s why I didn’t do a BINSER. Do you want me to have them sign one?

You should still submit the BINSR with the box checked premises accepted and signed on page one and signed at the top of page two notice Inspection Waived.

BINSR, CANCEL BEFORE OPENING ESCROW:  1) Cancel on BINSR, Check Rejected Box, List Reasons, Sign.  2) Create HS File.  3) Upload Contract, Upload BINSR Marked Cancelled, Upload Missing PW Form, EXPLAIN:  “Buyer cancelled on BINSR after only (x) days, Escrow not opened, Earnest Money was not deposited.” Or is Mutual Cancellation Possible?  (I would mark premises rejected on page 1 of the BINSR, Sign and I would reference some items from the inspection that came up (anything), and then expand on that.

BINSR, FAKE CANCEL CONTRACT AFTER ONLY 1 DAY (buyer rec'd mold and asbestos remediation disclosures from seller)Cancel on BINSR, be very specific, property is unacceptable to buyers, road noise, dogs barking, neighborhood noise, pool/no pool, single level/two story, garage, room sizes too small for family furniture, kitchen too small, bedrooms too small, street setback, yard size, school district, deferred maintenance, prefer new build/age of home, taxes too high, Negative Feng Shui, Sanctuary City Consideration = increased crime statistics, rude neighbors, saw scorpion on property (especially if stated on SPDS), remodeling costs too high, code violations, unable to confirm square footage, prefer mountain views, prefer gated/ungated community, proximity to work, healthcare, outside of preferred school district, stairs vs no stairs, fence vs no fence, prefer yard/greenery or natural desert landscaping, prefer gas utilities, HOA/Deed restrictions, insulation ratings, lack of storage, etc, sign form, send cancellation to title co, copy listing agent.

SEX OFFENDER REGISTER SEARCH, AZ DEPT OF PUBLIC SAFETY  “Buyer(s) elect to cancel after having conducted independent inquiries regarding sex offenders in the vicinity.  Buyer election is based on search results which show (#) offenders located within the targeted search area using the “property address” as the “search address.”                                                                                                                               See AZ DEPT OF PUBLIC SAFETY website:   http://icrimewatch.net/index.php?AgencyID=55662

BINSR CANCEL DUE TO DEATH AT PROPERTY:  Buyer has (discovered, learned, been made aware) that a death has occurred in the property (or the owner died in the premises).  Buyer is (spiritually) uncomfortable with this fact and hereby elects to cancel the purchase contract.

BINSR, EXTEND INSPECTION PERIOD: “Seller and Buyer mutually agree to extend the "inspection" period through May 21, 2017 in order to complete all necessary inspections and complete the BINSR.”

BINSR….BUYER ALLOWED ACCESS TO MAKE REPAIRS

“Seller allows buyer access to the property for the purpose of painting the areas which were of concern to the appraiser/lender.  Buyer agrees to indemnify and hold harmless both seller and brokers against any and all liability regarding this early access to the property prior to COE.”

 

BINSR, HOA RESPONSIBLE FOR REPAIRS  Buyer, request something like “Have HOA repair loose tiles and cracked caps.”                Seller response:  “Seller cannot perform repairs to the roof or trim the trees.  This is the responsibility of the HOA as per the CC&R’s.  An inspection report and repair request has been submitted to the HOA for their review.  The HOA is responsible for performing any necessary repairs to the roof and trimming of trees.  Repairs completed by the HOA may have to be completed for the buyer after the close of escrow.” 

BINSR, HOA RESPONSIBLE FOR REPAIRS                                                                                                                                                                                          The home inspector has found termite tubes at the master bedroom window at today’s inspection. The condo is on the second floor, and the inspector stated that the termite treatment cannot be done from the condo but from the ground, i.e. the building has to be treated.  The condo is located in a subdivision, and the HOA fee covers the exterior maintenance of unit, roof, etc. It should be the HOA’s responsibility to treat for termites. We do not know when the building was treated the last time.

Also, trees are hanging over the roofing of the building where subject unit is located. Per the home inspector, the HOA shall cut back the branches to avoid damage of the roof, due to tree sap, bird droppings, or from accumulated tree debris.

It is my understanding that the HOA is responsible for the termite treatment and the cutting of the trees. What’s proper verbiage on the BINSR?

Regarding these repair items which are out of the sellers control, I would state something like

"Due to the fact that Pest Control Services and Landscaping are administered and controlled by the HOA, Seller agrees to contact the HOA Immediately to request and schedule both pest control/termite treatment for building x, unit x, and tree trimming for building x, unit x."   "Seller to confirm, in writing, that these requests have been submitted to the HOA."   Any and all HOA Response including Scheduling and Confirmation Status for these requested Repair services shall be immediately forwarded to the Buyers.  If seller is found responsible for any repairs or damages,  Seller agrees to assume all financial responsibility to either the HOA or Contractor.”

"Due to the fact that Pest Control Services are administered by the HOA, Seller agrees to contact the HOA Immediately to request and schedule pest control/termite treatment for building x, unit x.  "Seller to confirm, in writing, that these requests have been submitted to the HOA."   Any and all HOA Response including Scheduling and Confirmation Status for requested Repair services shall be immediately forwarded to the Buyers.  If seller is found responsible for any repairs or damages,  Seller agrees to assume all financial responsibility to either the HOA or Contractor.”

BINSR, BUYER MISSED BINSR DEADLINE  “Buyer missed BINSR submission deadline.  Even though the Seller is not obligated to make any repairs, Seller will complete the following repairs on behalf of the buyer:  List, xxxx, xxxx, xxxx.” 

Q: Hi Jeff, The buyer's agent submitted the BINSR late.  They requested 2 repairs.  A roof repair and a AC.  My seller agreed to the roof repair but not the new AC (on an addendum as you suggested).  How long do we give them before they let us know if they want to move forward or cancel the contract? 

A: Hi Jill, it would be up to your seller. At this point, line #287-289 would apply, your seller is under no further obligation regarding the BINSR.  If they do submit one late, and your seller reply's, then the BINSR is back in play. You could consider language such as this if your seller is willing to make any repairs, but I recommend keeping it off of the BINSR, you can create your own Amendment or Supplement:

BINSR, BUYER MISSED BINSR DEADLINE  “Buyer missed BINSR submission deadline.  Even though the Seller is not obligated to make any repairs, Seller will complete the following repairs on behalf of the buyer:  List, xxxx, xxxx, xxxx.” 

AMEND THE BINSR, CHANGE RESPONSE: AMENDMENT OR SUPPLAMENT to the BINSR:  Seller agrees to the following additional repairs: xxx xxxx xxxx OR “Seller and Buyer hereby agree to the following changes to the BINSR:  xxx xxx xxx xxx xxx OR “Seller and Buyer Agree to amend/change the BINSR as follows:  xxx xxx xxx xxx  OR  "Contrary to the prior BINSR agreement dated xx/xx/xxxx, Seller and Buyer agree to the following BINSR changes:

seller_____________________  buyer_____________________________

BINSR AGREE TO REPAIRS, REMIND BUYER THAT LICENSED CONTRACTOR NOT REQUIRED (Page 2 of BINSR)

“Seller agrees to repair all items requested by buyer.”

“Contract does not require a licensed contractor for repairs costing less than $1,000.00”

“All Repairs will be completed in a workmanlike manner.”

BINSR--DO NOT JUST SAY “CREDIT IN LIEU OF REPAIRS”, YOU MUST LIST REPAIRS, THEN SAY:

“Buyer is willing to consider, and prefers, a closing cost credit or a price reduction in lieu of any or all repairs.”

 

RISK REDUCTION:  List Repairs, state in email:  In Lieu of Repairs, Buyers preference would be a closing cost credit of $X/a price reduction to Y.” 

 

BINSR  REPAIR REQUEST LANGUAGE

Repair xxxxx

Repair xxxxx      Repair xxxxx

 

Buyer is willing to consider and prefers a closing cost credit or price reduction in lieu of any and all repairs.  Any agreed upon credits will be acknowledged on a separate addendum as a change in terms of this purchase agreement.

OR

Buyers would prefer/consider/accept a closing cost credit or price adjustment in lieu of sellers making (any/all or the following) repairs…

OR

“As an alternative, Buyer will consider a closing cost credit of $X, or a purchase price reduction to $XXX in lieu of repairs.”

 

BINSR RESPONSE FROM SELLER:  “Sellers response to the Residential Buyers Inspection Notice and Seller Response Form (BINSR) submitted by Buyer is documented and acknowledged on Addendum #1.” 

 

BINSR, ADDITONAL CONCESSIONS:  Seller agrees to credit buyer an additional $2500 which will bring seller concessions to a total up to $4500, which may be applied to any and all buyer closing costs including loan costs, title fees, escrow fees, pre-paids, appraisal, HOA fees, Home Warranty, or any other closing costs approved by the lender at buyers sole discretion. However should the total buyer closing costs be less than the agreed amount of $4,500 both parties agree to a principle price reduction by the amount of the remaining balance.”

 

BINSR, CREDIT IN LIEU OF REPAIRS LANGUAGE  In lieu of making any repairs, both disapproved items and non-working warranted items, seller shall credit buyer $x towards closing costs at COE.  This is the same credit that will be reference in Addendum #1.”

 

BINSR, CREDIT IN LIEU OF ALL REPAIRS LANGUAGE                                                                                                                              Sellers agree to make the following repairs: xxxxx.  In lieu of all other requested repairs, seller agrees to credit the buyer $x at COE.

BINSR, CREDIT IN LIEU OF REPAIRS, LEFTOVER $ BACK TO SELLER:  “Seller agrees to credit Buyer $x towards buyrs loan costs, impounds, Title/Escrow Company costs, Recording Fee’s, Prepaids and Appraisal costs, and if applicable, VA Loan Costs not permitted to be paid by the Buyer.”  If the previously states costs are less than the $x credit, any additional remaining funds to be deducted from the purchase price.”

BINSR, SELLER AGREES TO PRE-PAY VENDOR:  Seller agrees to pre-pay xyz roofing company (or vendor of buyers choice) $X at successful close of escrorw (see holdback account).

(BINSR OLD):  What is a BINSR? It means Buyer Inspection/Seller Response. If the Buyer sees repairs on the Inspection Report that affect warranted items (electrical, plumbing, working of doors/windows, appliances, lights, furnace/AC) those would be written in (for example, a leaking faucet). The purpose is not to put the home in like-new condition but rather to be sure things function properly (furnace/AC). Here is a poem one Broker wrote explaining WARRENTED ITEMS:
If it flushes or flows-Switches or glows-Has moving parts-or Should open or close-It has to be working-make sure everyone knows.

BINSR:  CLOSING COSTS, SELLER TO BUYER CREDIT LANGUAGE + overrides language in contract that limits WHAT items can be credited).  “Seller agrees to credit buyer $x at COE which may be applied to any and all borrower closing costs including loan costs, title fees, escrow fees, pre-paids, appraisal, HOA fees, capital improvement fees, home warranty or any other closing cost approved by lender at buyers sole discretion.”     However should the total buyer closing costs be less than the agreed amount of $4,500 both parties agree to a principle price reduction by the amount of the remaining balance.”

 

 2) Seller agrees to contribute a total of $x towards buyer closing costs which include but are not limited to pre-paids, appraisal fees, loan costs, title and escrow fees, home warranty and any other closing cost approved by lender at buyers sole discretion.

Here's the verbiage we just discussed. I use this when a seller is offering money in lieu of a repair or repairs. Lenders have approved this language as it doesn't throw up red flags for the underwriters.  “Contrary to line #100 or 101 (concessions) of the purchase contract dated xx/xx/xxxx, seller to contribute $x towards buyers closing costs.”

BINSR, ADDITIONAL CREDIT TO BUYER:  “Seller agrees to credit the buyer an additional $X at COE, bringing the total seller to buyer credit/concession to $Y.”

BINSR, NOT ENOUGH ROOM TO LIST REPAIRS:  DO NOT USE AN ADDENDUM AS A CONTINUATION! 

Q: I received a BINSR today where the buyer’s agent ran out of room listing repair items & continued the repair list on an Addendum form. I wanted to check with you about using an Addendum form for this purpose. I was always under the assumption that a word doc or something else was better to use as a continuation of the list of BINSR items versus an actual Addendum form.

A: We don't want to use an Addendum, that is reserved for changing the terms in the purchase contract.   The best was is to simply say "See Attachment A" (or something like that).  Then, create a word document, give it the title "Attachment A", list your repairs on this attachment.  Don't forget to include signature/date lines for both sellers and buyers.

BINSR:  IF AGENT USED ADDENDUM, REPLACE WITH AMENDMENT/SUPPLAMENT/ATTACHMENT (Now lender wants a copy of addendum #2 which has repair language and which we don’t want the lender to see).

This document replaces Addendum #X in it’s entirety.  Buyer and Seller agree as follows:   _________    Then, draft another addendum stating that “Addendum #2 was not signed and agreed to by the parties and is considered NULL & VOID, OR, draft an Addendum stating that “Addendum #3 was numbered incorrectly and is actually Addendum #2.”

BINSR:  WAIVE INSPECTION IN PC:  Be careful when you negotiate your contract.  Buyer should not waive their inspection.  Even though the contract says as-is, don't include language such as “Buyer agrees to refrain from making any repair or replacement requests.”  While you could still cancel on the BINSR in this scenario, you could not request repairs, have the seller say no, you will lose your earnest money.”  (You will lose your right/ability to cancel if you do ASK and they say NO.