Counteroffers

The offer process for the purchase and sale of a home may be difficult for an ordinary person to navigate. Massachusetts law requires an attorney for closings but not for negotiations. However, retaining an attorney for the negotiations process may improve the chances of reaching a deal that takes your best interests into account. Some sellers and buyers do not realize that under Massachusetts law, a signed offer to purchase is considered a binding contract. If you are uncertain about whether to make or consider an offer or counteroffer, the Boston real estate attorneys at Pulgini & Norton may be able to counsel you.

The custom in Massachusetts is for the offer process to include two phases. The first phase involves the initial offer by the buyer. You can make an offer without the participation of an agent, broker, or lawyer, but in most cases, it is better to consult a lawyer so that you fully understand the implications. Often, offers to purchase are made on a form that includes the property description, details about fixtures to be sold with the property, deposits, the date on which the offer will expire, the purchase and sale date, and the closing date.

If the seller agrees to this offer, he or she can sign the offer to have a binding contract and deliver it back to the buyer. It is important for a seller to understand that by signing an offer, he or she is bound to its terms even if many details may not yet be worked out. Sometimes, an addendum to the offer is added, detailing financing and inspection contingencies for the buyer's benefit. Often, a deposit is added to the offer to show the seller that the buyer is serious. If a buyer does not ultimately proceed with the purchase, he or she forfeits the deposit, except when a contingency that has been outlined in the addendum occurs.

However, in some cases, the seller may want to make a counteroffer. The counteroffer may involve an acceptance of the price of the offer, as well as a proposal of additional terms. However, when a counteroffer notes that it is accepting the offer price but proposing further terms, it does not bind the seller to the buyer's original offer to purchase. This is because it does not show the intent to be bound by the offer's terms. It is equivalent to a rejection unless the buyer agrees to the counteroffer. Often, there are multiple rounds of counteroffers before an agreement is finally reached.

After specific terms are negotiated, the offer to purchase may be replaced by a purchase and sale agreement. Although it is wise to have a purchase and sale agreement with relatively detailed terms, and lenders may require it, this agreement is not absolutely necessary when buying a home.

Buyers and sellers must both be aware that their language in connection with offers and counteroffers matters. In some cases, they may be rejecting an offer or counteroffer that they intended to accept or creating a binding contract without intending to do so. Our Boston real estate lawyers can help you negotiate a deal on residential real estate and provide valuable advice about your options. We also represent buyers, sellers, associations, and lenders in Brookline, Newton, and Weymouth, among other Massachusetts communities. Contact Pulgini & Norton at 781-843-2200 or through our online form to set up a free consultation with a property transaction attorney.