Offers Made in Writing Are Always Best

Imagine this: You’re on your way out of town when your real estate agent calls to let you know about a hot new listing. You arrange to meet your agent at the property to take a look before you go.

The house is just what you’ve been looking for. But there’s no time to make a written offer so you ask your agent to make a verbal offer for you. When you return from vacation, you find that the home sold to someone else.

A real estate agent is obliged to convey a verbal offer to the seller. However, if the offer isn’t written, it’s not legally binding on either the buyer or the seller. It’s rare that real estate purchase offers are accepted without a counteroffer, even if the price is acceptable.

Home purchase offers are complicated legal documents that include all the details of the sale--the personal property that’s included and excluded, the closing date, the financing arrangement and the inspection conditions, to name a few.

Buyers and sellers frequently have a counteroffer dialogue back and forth before they finalize the terms and conditions of their deal.

Even though a seller may be negotiating with one buyer, this doesn’t preclude him from entertaining offers from other buyers. Until the purchase contract and any counteroffers are accepted in writing by both the buyers and the sellers, the property is still available for sale.

First-Time Tip
Timing is critical in real estate transactions. So it’s important to make arrangements for times when you’ll be unavailable to make an offer or respond to a seller’s counteroffer.

Today homes are often sold with the help of the telephone and facsimile transmission. Facsimile signatures are usually binding as long as the intent is to sign the original documents at a later date. You and your partner can sign separate copies of the same document.

Make sure, if you’re using facsimile copies, that the text is legible and that you know and understand what you’re signing. Also, if you’re having contracts faxed to your office, you might want your agent to send the documents at a time when you know you’ll be available to retrieve them.

If you’re leaving town in the middle of a negotiation and you won’t have access to a fax machine, you may want to give your power of attorney to a trusted friend or relative. To be legally binding, the power of attorney should be on the proper form and it should be notarized.

Your real estate agent can help you with this. But don’t give a power of attorney to your agent. This would create a conflict of interest because your agent is owed a commission if the sale goes through.

Some agents present offers, and negotiate on a buyer’s behalf with a written authority letter from the buyer. This letter is not notarized. Be aware that when an agent signs a real estate contract for a buyer without a power of attorney, it’s not legally binding.

So even though a written authority letter saves time during the negotiation process, you could lose out to another buyer whose offer is properly signed. You also risk committing to terms you hadn’t anticipated if you’re dealing with a less than scrupulous agent.

Don’t rely on e-mail for making real estate offers and counteroffers. An e-mail isn’t signed, so it’s probably legally binding

The Closing
Taking shortcuts when you’re trying to buy or sell real estate is risky.

Dian Hymer is a syndicated columnist and the author of “Starting Out, The Complete Home Buyer’s Guide,” (Chronicle Books, Revised 1998.)