Please check with your broker and/or legal counsel before adding any additional clauses to a contract.

Listing Clauses

Unrepresented Buyer Clause:

In the event of an unrepresented buyer, Seller shall pay the Listing Broker a total compensation amount (inclusive of the Professional Service Fee) of $_______________ or _____ percent (%) of the agreed upon sales price at closing.

Purchase Clauses

Back-up Offer Clause:

Buyer and Seller agree that if this offer is not initially accepted as the primary contract, it shall automatically be considered a Backup Offer, subject to the termination of the existing primary contract. In the event the primary contract is terminated, Seller agrees to provide Buyer with written notice, at which point this Backup Offer shall immediately become the primary contract under the same terms and conditions herein. Buyer retains the right to withdraw this Backup Offer at any time prior to receiving notice of the primary contract’s termination by delivering written notice to Seller. Until this Backup Offer becomes the primary contract, Seller reserves the right to negotiate, amend, or extend the existing primary contract at Seller’s sole discretion.

Compensation By More Than One Party Clause:

Buyers and Sellers acknowledge that both Buyers and Sellers are paying a professional service fee to the Buyer’s Broker _______________________.

Escalation Clauses:

In situations where there are multiple offers on a property, contracts are often drafted to include an “escalation clause” which is designed to have the purchase price automatically increase to a certain amount above any higher offer, up to a specified limit. There is no standard language for these clauses, and it seems that the general practice is to include them in Section 9 under “Other Conditions”. Suggested language could be as simple as:

“Buyers hereby agree to increase their offer by $____ over the highest offer received (notwithstanding any Seller concessions) by Sellers from any other buyer(s), but not to exceed a maximum offer of $__________. Seller shall provide Buyer’s agent with satisfactory proof of such competing offers.”

Several common issues that arise when an escalation clause is used warrant mention. First, you will want to be clear whether or not the other offer(s) take into account any seller concessions or closing cost credits. Second, you will want to be careful to include any verbal offers that have not yet been reduced to writing, for example if the seller asks a competing buyer for their “highest and best” offer. In situations where there is a mortgage contingency, you will also want to clarify how the increased purchase price affects the deposit(s), additional cash to be brought to the closing and the amount of the mortgage. For example, will the ratio between the deposit(s), cash at closing and the mortgage remain the same, or will the increase in the purchase price be entirely added to the deposit(s), cash at closing or to the loan amount. Finally, you will want to provide that the escalation ends once a contract has been signed with a final purchase price.

3rd Party Review Clause:

Sale subject to [Probate Court] [Lienholder] [3rd Party] approval. Buyer’s deposit(s) to be returned to Buyer and Buyer to be reimbursed for the cost of appraisal if sale is not approved.

Inspection Clauses:

Buyer amends Section 17 and, if applicable, any inspection related Riders, as follows: (Please chose to write in one of the applicable clauses below that your Buyer wants to include in the Contract in Section 9)

• Buyer agrees to waive any request for repairs or credits for [X#] individual items where the estimated cost of repair or replacement is less than $ per item. Buyer shall only have the right to request repairs or credits for the portion of the estimated repair costs (for each item) that exceeds this amount.
• Buyer agrees to waive any request for repairs or credits for [X# ] cumulative total of items where the aggregate estimated cost of repair or replacement is less than $ . Buyer shall only have the right to request repairs or credits for the portion of the total estimated repair costs that exceeds this amount.
• Buyer shall not request any credits or repairs unless the aggregate cost of addressing inspection items exceeds $ . If the aggregate cost exceeds this threshold, Buyer may, at their discretion, negotiate the cost of any repairs in excess of the aforementioned dollar amount.
• Buyer agrees to absorb the cost of all cosmetic or deferred maintenance items regardless of cost. Buyer’s right to terminate or negotiate under this Inspection Contingency shall be limited to single-item repairs exceeding $ related specifically to the [ ] Foundation, [ ] Roof, [ ] HVAC, Plumbing, and/or [ ] Electrical systems [ ] Other . (Write in all that apply)
• Inspections are for Buyer’s information only. Buyer accepts Property in “As Is” condition. Buyer waives the right to terminate under Section 17 and, if applicable, any inspection related Riders, attached to this Contract. (Do not attach an As Is Rider when using this clause.)

FHA or VA appraisal:

Buyers agree to pay for any repairs deemed necessary as a result of FHA (or VA) appraisal up to but not to exceed $_____________. Buyers further agree to hire licensed contractors to complete the work prior to closing and provide proof all contractors have been paid.