A few nights ago, our managing broker was gone from our office. I was the highest-tenured agent in the office. So naturally one of our agents asks me:
Q: How do I counter the backup offer on my listing?
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A: I asked if she had a fully-executed acceptance on the offer in first-position. Yes. Was the 2nd offer acceptable except the backup position without any other changes to the offer? Yes.
Now, I'm not an attorney, but my recommendation was: "Buyer #2 to be placed into backup position to earnest money #_____ (the first-position offer)." I asked if she represented the buyer also. No. I asked if she wanted additional verbiage allowing the 2nd buyer to walk if they found something else -- something most buyers' agents ask for in their counters to backup position. Yes. So my additional verbiage was: "Buyers reserve the right to terminate this contract at any time prior to receiving written notification from listing agent upon being placed into first position."
She's writing this stuff down as quickly as I could comment. I repeated things very slowly so we couldn't mess this up. Contract language is, after all, binding on all parties. I asked her to read it back for clarification: "Buyers to be in first postion to earnest money #_____. Buyers reserve the right to terminate this contract upon being placed into first position."
HUH?? Basically, had she written HER terminology, she probably would have had buyer #2 AND buyer #1 in accepted first position. Just the kind of stuff that gets your license pulled out from under you. And when I caught it, she laughed and said she would have told the Real Estate Agency it was MY error. Ha-ha... Not funny stuff. I then wrote the entire paragraph out for her word-for-word so she wouldn't be in trouble. Sounds like she has an accepted offer and a backup now. Good for her!! :-)
Just remember: When you write or counter a backup offer, make sure all buyers know IN WRITING and verbalize to all buyers' agents which position they are in. Be very clear about this point. Don't accept more than one offer at a time in 1st position. You can even have backups to backups, if you are so lucky. But make sure to include: "Buyer #3 to be placed into 2nd backup position to earnest money #_____ (the first-position offer) AND earnest money #_____ (the second-position offer)." If you need EXACT terminology, be sure to seek the counsel of a real estate attorney.
Hope this helps. As always, if you ever need a Realtor in Oregon, I appreciate all referrals. Have a great weekend, everyone! :-) ~~ Bobby