Sellers Face Contingent Dilemma

Contingencies in contracts will always exist. It is a rare thing to find a written contract which satisfies both parties right up front without a contingency.

In a sellers market, even if the buyer writes it with no contingencies, the seller will tack on a few of his own -- must find home of choice, comes to mind. Even so, when sellers add contingencies, it's usually only a couple that are easily remedied and which don't cost the buyer much money. When buyers add contingencies, on the other hand, it means the seller may face delayed expenses (such has home inspection defects) or have the chance that the house may not sell at all. Here's what I mean.

A Washington, D.C. area seller writes that he has "drastically lowered" his price, has a great agent and is "very realistic about the market," but that he's turned down two contingent contracts with unrealistic buyers. Having lowered the price to 30 percent below appraised value, the two contracts have both been contingent on the buyer selling his or her home first before completing the sale.

In further discussion, both buyers, according to this seller, are very unrealistic about the value of their own homes, and want to put them on the market way overpriced.
"They think my house is a great deal because I have lowered my price," Tired Seller writes. "Then they write a contract based on the equity they 'assume' they have in their home. They want to list it way overpriced ... . My plan is to just keep lowering the price until it sells. Any advice?"

First of all, if you've already drawn two contracts, then you may have hit the low-enough point. Now, work on the marketing and seller subsidies up front. In addition, before rejecting an offer outright, I would write a counter that the buyer can only list the property for a certain amount. Don't say, "market value price," go ahead and have your agent draw up a comparative market analysis on the buyer's house and base the price on that CMA.

In addition, ask the buyer to follow the same modus operandi you have -- be willing to drop the price every other week until it draws a contract. Write all this verbiage in the "Other Terms" section of the contract. Remember, in real estate everything is negotiable.

When a contract comes through, in a buyers market a seller needs to remember to keep his or her cool. You don't need to roll over a play dead, accepting any terms the buyer offers. Remember, you have a contract in your hand. While the buyers may have dozens of other homes to choose from, they have chosen yours because it obviously fits their housing needs. They also obviously like your price, so now concentrate on the terms. In today's market, if your house is priced right, then you only have to focus on terms to get a winning contract on the board.

The challenge of accepting a contingent contract in many MLS's around the country, is that the status changes from Active to Under Contract/Contingencies. The problem with that is with so many homes on the market, 99 percent of buyer agents search only Active listings for their buyers -- they rarely seek out UC/Contingencies status. Why bother? They are obviously in negotiation with a buyer already.

So switching the status may mean your home lingers toward closing while waiting for the buyers' home to sell. On the other hand, the buyer becomes much more motivated to sell and may be willing to drop the price right away to elicit a quick sale.

The No. 1 contingency in contracts today is the home inspection. Instead of fearing this contingency, the astute seller will conduct his or her own home inspection and fix the problems before the buyer finds something later. Be tough on your own house. If it has an old air conditioner -- have it worked on and serviced. Make sure all the plugs work properly.

If you are a do-it-yourselfer, make sure you have the permits or at least professional inspections necessary to show you did the work right. I've seen sellers redo the plumbing and/or electrical work of the previous owner who was a DIY because they just didn't know it was done wrong.

In other words, the seller who anticipates the challenges from a buyer will be ahead of the game. Don't wait till you "find out" that you have termites -- look it up and uncover the defect before it's a surprise. Be willing to accept contingencies, but also be willing to negotiate to make it work for you as well.

Published: June 30, 2006