Andrew Wetzel's Musings

May 22, 2021

My Buyer’s Offer Did Not Get Accepted; What Can They Do? Part 3 of 4: The Offer

Whether you are starting the process of buying your first or your “next” home, actively engaged in house hunting or you have already been denied a house you really wanted to own, I want to share some time-tested advice.  I am going to cover this from four perspectives.  This is part 3 of 4.  This is a broad topic with no “one size fits all” answers.  My advice comes with two disclaimers:  this is not intended as legal advice and it is not meant to interfere if you have an existing business relationship.

Let me start with the premise that a buyer or you made an offer and it was rejected.  If a buyer makes what they think is a reasonable offer and the seller does not accept it, they should have no regrets.  Easy for me to say.  If yours was the only offer, I would assume that you had a chance to negotiate with the owner but could not reach a mutually beneficial solution.  If you were competing with other buyers, only one offer could win.  Did the buyer have the right expectations about the process and how it might go?  Could or should their agent or the listing agent or the seller have done anything differently?  If the seller was given an opportunity to review all offers and was properly informed of any possible interest that existed and they accepted what they thought was the best offer, there may be no valid  reason to complain about the outcome.  Every signed agreement does not close so you may get another chance, if you want one, but do not assume you will.  In fact, depending on the type of Real Estate market, you may want to assume that you have competition and that you will not have a chance to change your initial offer.

I provide my buyer-clients with knowledge that I have gained through my years of experience, training and education.  I have also learned a lot from conducting mediations between buyers and sellers and listening to ethics complaints about agents.  Fundamentally, I believe that the process of buying or selling Real Estate is best looked at as a business decision, not a personal one.  It is also not a retail transaction.

Looking for a house can become a full-time job but it is worth it.  Your life will get back to normal after you succeed.  Bad purchase decisions can be costly and their effects can last a long time.  Real Estate is typically our biggest asset and requires our largest investment so buying or selling it requires planning and preparation.  It deserves our full attention.

As I discussed in part two, The Search, once a buyer starts to identify possible houses to consider looking at and buying, there is a process to narrowing the list down to the best and getting in to see and evaluate them as quickly as possible.  I remind buyers that proper planning and preparation will position them to compete better and that they are not the only buyer seeing the search results they receive.  It all comes down to making an offer that will appeal to the seller or, at the very least, maximize the chance that the seller will offer a counter-proposal.  The purpose of negotiating is to keep talking.  While that can wear someone down, it is better than silence.  That being said, buying Real Estate can be very competitive so a buyer might want to assume that they have competition and may not get a second chance to negotiate after making an offer.  In some cases, you may want to make your “highest and best” offer from the beginning.  Unless you are concerned about over-paying, if your offer does not get accepted, you should have no regrets.  Inspections and a mortgage appraisal will provide some guidance about the property condition and the market value in any case.

When a buyer decides to make an offer on a house, only they know what they are thinking and hoping.  Did they make their best offer or are they expecting a counter-offer?  Whether they are suddenly inspired when they see a house or the decision comes after giving it some thought, if they have approached the process in a practical way, regardless of whether their offer gets accepted or not, they will at least know that they did their best.  That may be a small consolation but a buyer can only do so much.  Of course, if the search was haphazard or the buyer wasn’t completely convinced that a specific house was the best one for them but they decided to make an offer anyway, they may not know how to react even if they succeed.  Buyer remorse, meaning feeling that there may be a better option now or later or, even worse, if they come to believe that they made a bad decision after settlement, can be a problem.  There may be opportunities for either party to terminate a sale.  What will they to do?  Having remorse or doubts after closing is too late!

Some buyers will go “all-in”, perhaps to excess, with an offer.  This could include any or all of the following:  making an offer “sight unseen”, going above the asking price, keeping the contingencies to a minimum or waiving some or all of them.  Buyers have a lot of options when they really like a house, especially if they think or know there is competition.  What they do can be done to maximize their chances for success or it can be done to get a house under contract while they really take the time and effort to decide whether they picked the best house.  It is not for me to judge these things but there is a seller involved and one or two agents.  They can be impacted by a buyer’s motivation especially if the buyer is really unsure if they want to own the house.

How many buyers make offers “sight unseen” and cancel a sale using a contingency like a property inspection once they see inside?  The cost of inspections is minor compared to completing a bad purchase.  How many buyers make great offers and then ask for repairs or credits later to recover some of what they offered?  What about so-called “love letters” to the seller?  How many buyers just decide not to move forward and are willing to risk losing their deposit?  As I like to say, buying and selling Real Estate are business decisions justified with logic.  It is never over until the seller has the buyer’s money and the buyer has the seller’s keys.  So, what can prevent a buyer’s offer from being accepted?

  1. Their offered price is not the highest.  For some sellers, the price is their primary motivation.  Oddly enough, in some cases sellers refuse the highest offers if they don’t think their house will appraise;
  2. The buyer’s contingencies are not the best for the seller.  Perhaps the seller wants a “clean” sale, meaning few hurdles, or the buyer has a house to sell so they can buy their “next home”;
  3. Something else within the contract is not the best for the seller.  This could include the settlement date, the amount of deposit money or anything that offers the buyer an option and the seller a choice.  Some agents and buyers use an “escalation clause” in the hopes of learning what it will take to make their offer better than the competition.  Many listing agents and sellers refuse to share details while expecting the offer to be improved.  Suppose there are multiple offers with these same clauses?  However you view them, they are not perfect and may not be enough to overcome stronger offers.  I view these clauses as showing that a buyer may have made a low offer and will raise it if they have to;
  4. The offer does not include buyer financial information such as proof of funds for a cash offer.  Many PA agents use a “BFI” or “Buyer’s Financial Information” form, which I liken to a Seller’s Property Disclosure Statement.  Buyers and sellers basically want to know that the other person is serious and able to complete the sale.  The BFI provides an overview of the buyer’s financial information for a seller and their listing agent to review when comparing offers.  It complements a lender’s pre-qualification letter but, in my opinion, carries more weight as the buyer prepares it and the seller has legal remedies if the buyer misstates something whereas there may be no remedy for what a careless lender does.  Sad to say but I have seen some lenders provide letters that were meaningless.  I have heard of situations where a BFI negated a lender’s letter resulting in a declined offer.  Some buyers are reluctant to provide their financial information; some buyer agents and listing agents do not ask for it.  In a competitive situation this can be a problem.  Give a seller a good offer and convince them that it will settle and your chances should improve dramatically.  Most sellers want to minimize their own risk.

When a seller only receives one offer, they are more likely to negotiate if the offer is not exactly what they were looking for.  However, in a competitive or multi-offer situation, a buyer may not get a second chance to improve their “first impression”.  I remind buyers that, regardless of the type of market, there is no guarantee that they will get a second chance.  While many buyers are reluctant to make their “highest and best offer”, they need to understand the risk.  Wondering what happened later is uncomfortable.

For example, when I give a blank BFI to buyers, some will ask me how much they should reveal.  Obviously, they need to accurately disclose income and debt information and show at least enough assets to cover their closing costs.  However, some buyers are reluctant to show more than they need to justify their offer, typically saying that a seller may ask them for more money.  The same occurs with the pre-qualification letter.  Let me address both at the same time using a hypothetical scenario.

Suppose a buyer wants to offer $285,000 on a $300,000 house and they are financially able to go as high as $350,000.  Do they show enough to cover their offer?  The asking price?  Or do they show everything?  I say show EVERYTHING!  Again, if there is no competition, which you may not know, they will likely get a “second chance” if the seller wants more than $285,000.  However, if there is competition, a seller may just go with what “appears” to be a “stronger” offer or at least have a discussion with those agents who “appear” to be representing stronger buyers.  They may assume they have seen your best offer and move on.

So what if a seller wants you to raise your offer because they know you can?  Do you expect them to lower their price when you learn they have no mortgage?  Even if they ask, as I said earlier, the point of any negotiation is to keep talking to see if they can reach a mutually-beneficial agreement.  Most sellers will be happy to know that a buyer is not maxed out with their offer which could mean there is a greater chance of their loan being denied.  Even if they ask and you say no, you had a chance.  You may come to regret what happens but you had a chance.  It beats the alternative!

Ironically, when a buyer decides to raise their offer, it is likely that their expectations for the property inspection(s) also rises.  On the other hand, a seller who accepts less than they really wanted may be less enthusiastic when asked to make repairs or issue credits for repairs.  Either way, the goal is to keep the conversation going although one or both parties may tire if the process drags on and on and on.  While you continue talking, the house remains on the market allowing other buyers the opportunity to make an offer!

The bottom line is that a buyer needs to know what is in their best interest, understand the market they are in and make an informed series of decisions when making and perhaps negotiating an offer.  When an offer gets rejected or the parties cannot reach an agreement after going back and forth, a buyer needs to evaluate what happened to avoid repeating the same process over and over again.  I have worked with buyers who had several offers rejected.  For some, re-engaging in the process is tough.  Some give up for awhile while others jump right back in.  They may not know exactly what happened and they likely won’t find out what price the seller accepted for several weeks.  They may never know more than that.  A decision to buy or sell Real Estate is an emotional decision justified with logic.  Some are simply better prepared to put it all into perspective and continue moving forward.

There is no time for inexperience, empty promises or false expectations.

HIRE WISELY:  We are not all the same!

April 5, 2021

My New Audio Course is LIVE on Listenable.io

I received an email from the staff at Listenable.  They provide an online platform that offers “powerful, bite-sized audio courses authored by well‑loved experts”.  They said:  “Congratulations on launching your first course on Listenable!  We’re excited to have you on board!  We sincerely appreciate the work you’ve done to create such an outstanding course and we are proud to have you on the Listenable team.”

I am happy and excited to add my content to their impressive lineup of courses.  The title of my course is “The Basics of Selling Residential Real Estate”.  Why did I create it?

My passion for Real Estate led to my writing blogs and recording podcasts.  Someone at Listenable heard my podcasts and contacted me to ask if I would be interested in creating an audio course for them.  The subject matter was up to me and this topic seemed an obvious choice.

As I have learned over the course of my career as well as through my involvement in various roles within the Real Estate community, Real Estate is not rocket science by any means although many make it far more complicated than necessary.  The process of selling or buying residential Real Estate generally involves a number of basic steps that must be completed in order to succeed.  Hiring a professional should increase your chances for success.  Our experience, training and education can provide the knowledge and insight typically needed to navigate the home selling or buying process.

My course consists of 13 lessons averaging about 8 minutes each.  I break the steps of selling Real Estate down into “the basics” and explain what we do and why we do it.  My goal is to take some of the mystery out of what people think we do and clarify it so that the typical listener will be more comfortable with the process.  I discuss the entire selling process from hiring an agent through settlement/ closing.  I hope that you will listen to it and recommend my course to people you know.

Here are the lessons:  The “Five Steps to Selling Real Estate”; Hiring an Agent; Preparing Your House for Sale; Marketing Your House to Sell; Pricing Your House to Sell; The Listing Contract; Your House is on the “Active” Market; Congratulations, You Have an Offer; Contingencies; Closing the Sale.  I included two “bonus” lessons:  Andrew’s Time-Tested Real Estate One Liners and The Code of Ethics and Standards of Practice of the NATIONAL ASSOCIATION OF REALTORS.

Here is a direct link:  https://listenable.io/web/courses/380/the-basics-of-selling-residential-real-estate/   To enjoy14 free days of Listenable, use this link:  https://listenable.io/?rf=CMO1BEOO

I have an extensive catalog of blogs and podcasts posted on several websites including my primary site AndrewWetzel.com.  If you haven’t followed them, I encourage you to give them a try.  If you have read and listened to my material, thank you.  I will keep adding new content.

Best wishes and thank you for listening and reading!  As always, I am a phone call, email or text away if you have any questions.

There is no time for inexperience, empty promises or false expectations.

HIRE WISELY:  We are not all the same.

Should a Buyer Agent Represent Two Buyers Bidding on the Same House?

This is a question that most agents and buyers never really have to think about.  How often does this happen?  I like to raise the question in my ethics classes for these very reasons.  Once people do think about it, it can generate a lively theoretical discussion which generates emotion and opinion.  I am not sure there is a perfect answer but I think it has so many aspects to it that it is worth discussing.  Better now than in an ethics hearing.  Let me start with some disclaimers.

First, this is my opinion and not intended as legal advice.  Second, I am in PA where this practice is not considered “dual agency”.  In fact, our contracts specifically allow this to happen which I will discuss later in further detail.  However, it is considered “dual agency” in some states which makes me wonder why, how can that be:  it either is or it is not “dual agency”.  How can it be looked at differently in different states?  If it were considered “dual agency”, which is not allowed in some states, that would at least provide some direction as to how to handle it and remove my concerns.  Third, my intent is not to interfere with any existing business relationships although I would respectfully suggest that buyers should know if this situation might come up so that they can make an informed decision before entering into a business relationship that might not work for them.  In PA many agents refuse to act as “dual agents”.  I wonder how they view this topic?

I am an analytical thinker so I will look at this from several perspectives.  Let’s start with some contract information, meaning some language that a potential buyer-client should know before hiring an agent to represent them.  This assumes that a buyer hires an agent and actually discusses their respective roles.  Of course, if an agent does not follow our rules and regulations, a member of the public may not be as well informed as they should be.  While well over 90% of the public searches online for Real Estate listings and information, I do not believe that most really understand agency representation.  We do more than open doors and write contracts.  Do prospective buyers know what to ask agents they might hire?  Are they resistant when an agent tries to do their job by discussing contracts and agency disclosures?  I am going to talk about this from the perspective of being a REALTOR, not just a licensee.  This means I will refer to out REALTOR Code of Ethics as well as our state’s “standard forms”.

Article 1 of our REALTOR Code of Ethics requires that we protect and promote the interests of our clients above all else.  While we are required to have a business relationship contract with someone to represent them as our client, rather than as our customer, that is not always the case and not having a contract is not an excuse when a problem arises.  What is important is what a buyer thinks of our relationship.  Our conduct may convey a perception that they are our client when they are technically not.  That poses potential problems and it likely means that they know less than they would have had they seen the proper forms.  This Article brings up the topic of fiduciary duties which I will discuss later.  These are owed to a client but not to a customer.

Article 2 states that “REALTORS shall avoid … concealment of pertinent facts relating to the property or transaction ….  REALTORS shall not, however, be obligated to …  disclose facts which are confidential”.  This Article brings up the topic of confidentiality which I will also discuss later.

In PA we have a form called a “Consumer Notice” that all licensees are required to present and explain to any member of the public before having a “substantive” discussion with them, referring to their “needs and wants”, and entering into a business relationship.  It describes the different relationships available as well as reviewing a number of agency/ representation-related issues. 

Under “Buyer Agent”, it says that we “work exclusively for the buyer”, that we “must act in the buyer’s best interest” “and must keep all confidential information, confidential”.  I mentioned a relationship called “dual agency”.  This occurs when an agent or Broker “works for both the seller and the buyer” in the same sale.  As stated in our Code of Ethics, this relationship requires “full disclosure to and with the informed consent of both parties”, meaning in writing, before acting in that capacity.

The Consumer Notice also includes several other important details.  All agents “must disclose, as soon as practicable, all conflicts of interest”.  A dual agent may not take any action that is detrimental to either party.  In a typical seller/ buyer scenario that is perhaps best explained by saying that a dual agent cannot disclose how low a seller will go or how high a buyer will go in their efforts to sign an agreement of sale or negotiate details later such as inspection issues.

Based on what I have presented so far, my non-legal but educated opinion is that representing two buyer-clients bidding on the same house seems like “dual agency” to me.  Again, I do not understand how some states see it that way while others, including PA, do not but I think that there is no harm in treating it as “dual agency”.  I have never heard a client complain that their agent over-protected their interests, have you?

Now let’s discuss “fiduciary duties”.  Working with a customer, meaning there is no contract, has requirements.  Working for a client expands that list as there is agency representation and six fiduciary duties.  The list includes:  obeying a client’s lawful instructions, being loyal to their purpose or goal, disclosing what you know that could help them succeed, keeping their information confidential, being accountable for keeping them on track with what they need to do throughout the process and providing reasonable care and diligence in your representation to protect them.  There is much more to these duties but imagine representing two buyers with similar intentions.

In a “dual agency” relationship two of these fiduciary duties are compromised or negated:  you cannot disclose to one party what the other party wants kept confidential.  This does not refer to “material facts” that must be disclosed if known.  It does refer to things that could hurt someone’s negotiating strategy.  A critical question is what is meant by confidential?

A listing agent can share details about an offer presented to them by one agent with another agent.  Many agents and consumers do not know that.  This is another topic that gets my classes going!  Absent a previously signed “confidentiality agreement”, such as is often used in commercial listings, the details of an offer are not inherently private and can be “shopped” to get a better offer.  Of course, this does not include the buyer’s name or personal information.

That being said, some people are very private and consider things “confidential” that others may not.  Learning this is part of getting to know your client.  Do you see how this can impact having more than one buyer client interested in the same property?

In PA we have two different buyer representation contracts, one is “exclusive” while the other is “non-exclusive”, the difference being whether a buyer works solely with one agent or has more than one agent assisting them.  That alone can present issues but is not my point here.  Unfortunately, some agents do not present either form to their prospective clients or they do so at the point of creating an offer on a property.  Better late than never!  I know that some clients are resistant to signing contracts or they may be willing to be a customer rather than committing to one Broker/ agent and getting the benefits of full representation.  However, there is important information they need to know and an executed contract proves they were at least informed of this information.

In both the exclusive and the non-exclusive contracts, there is the same language regarding issues related to conflicts with two clients.  They both say that a “Broker may not take action that is inconsistent with a buyer’s interest”.  They both say that an agent “may show the same properties to other buyers and may represent those buyers in attempts to purchase the same property that a buyer wishes to purchase” and that doing this is not a “breach of duty”.  They both say that “It is a conflict of interest when a Broker … cannot put a buyer’s interest before any other”.  “Unless permitted by a buyer or required by law, a Broker will not knowingly reveal or use any confidential information of a buyer”.  However, it does not specify what the word “confidential” mean.  It does talk about not treating the “existence, terms or conditions of any offer as confidential unless there is a confidentiality agreement” but the sentence ends with “between a Buyer and the seller”.  I guess the word “exclusive” only works one way, meaning that the buyer is restricted to one agent but the agent is not restricted to one buyer.

Then both contracts go on to say that “it is a conflict of interest when a Broker or licensee … cannot put a buyer’s interest before any other”.  The section concludes by saying that if there is a “conflict of interest, the broker will notify the Buyer in a timely manner”.  How does all of this sound to you?

These are not guidelines or suggestions, they are rules.  How do you accept all of these rules and properly manage the home searches of two buyers who want to pursue the same house?  Of course, if two or more buyers are looking in different areas and price ranges this may never be an issue.  But buyer’s plans change.  Many buyers end up buying a house vastly different from what they said they wanted.

I am not an attorney but these sections seem to conflict, don’t they?  Wouldn’t having more than one buyer interested in making an offer on the same house be about as conflicted as it gets?  While the rules say that an agent must mention having a conflict, it does not elaborate.  Do I need to do more than say “I have a conflict”?  Can I say what the conflict is?  Here is the best part:  to whom do I mention the conflict and what is the remedy?  Do I tell both buyers?  Can I just end my relationship with one of the buyers and keep working for the other?

That raises an interesting question:  who is allowed to terminate a contract?  While I could have another agent take over with one buyer, I think that poses a problem as I would still know information about that buyer that I would not normally know and that could harm them.  In fact, when agents encounter problems with seller/ buyer dual agency, I suggest that they completely remove themselves from both client relationships to avoid any perception of problems with disclosure or confidentiality.

As with all Real Estate paperwork, the buyer contracts do encourage the prospective client to seek the services of an appropriate professional, such as an attorney.  While that makes sense, is there time to do that?  If a buyer has done as I suggest, all of this would have been taken care of before I showed them any houses.  Conflicts that arise after that may not be able to be undone and it could impact a buyer’s opportunity to make an offer and get it signed.

Let’s drill down further to the real issue.  Aside from whether one agent can truly best represent the separate but conflicting interests of two different buyers, remember that only one buyer gets the house, does the agent have the right to tell each buyer-client about the other’s interest in the same house?  Does doing that conflict with the fiduciary duties owed to each buyer-client?  What is the goal?

I have had agents tell me that they want to be “fair”.  Really?  Who gets to decide what is “fair”?  What does that even mean?  The REALTOR Code of Ethics used to have that word in Article 1:  it said that, while we had a duty to protect and promote the best interests of our clients, we had a duty to treat people fairly.  If you are a sports fan, what is fair?  Is a pitch a ball or strike?  Did a referee miss a penalty or make a bad call?  The word, however nice it sounds, is confusing because it is unclear.  Do any two people, especially those working on the same sale, define the term the same?  Again, only one buyer can win.  Perhaps neither buyer will succeed but that does not mean that all is well.  Anyway, the Code of Ethics was amended years ago to say that we have to treat people honestly.  I’ll leave that alone but telling two buyer clients about the interest of the other is not a measure of honesty to me.

Years ago I had an agent in my office show one of my listings.  They brought me an offer which was negotiated, accepted and signed.  When I called to tell them that it was signed by my seller-client they made a very unusual request of me:  they asked if I would enter my name in the MLS as the buyer’s agent.  I asked why and was told that this agent had sent the same property listing information to four different clients but only one seized the opportunity and quickly got the house under agreement.  The agent was concerned that the other three would blame them for not telling them what had happened.  I commended this agent for what they did!  I can’t imagine what might have happened had they shown the house to the other clients and written and negotiated multiple offers on the same house.

The question then becomes what happens next?  Let me explore a couple possibilities.

  • If neither buyer gets the house, there may have been no harm done but the question of whether our actions are ethical or professional is based on our conduct and not the outcome.  “No harm, no foul” is not the measure.  Did our actions possibly cause both buyers to lose a sale?
  • Suppose one of your two buyers wins.  Did they improve their offer because they knew they had competition?  If so, did they spend or do more than they really had to and might have done if they did not know?  Did the other buyer hold back or drop out because they felt they could not win?  Some people want to compete, even if they overdo it, while others will not compete even if they might succeed.  Saying that both buyers knew that other agents had interested buyers does not change my opinion.

To conclude, there is a lot to what seems like a simple question.  Ultimately, it “appears” that our forms and contracts allow us to represent more than one buyer interested in buying the same house but I am not sure there is sufficient guidance as far as what to do when this situation comes up.  I have disclosure and confidentiality concerns.  I think each client should be allowed to make that decision.  I would guess that both would like to know about the other even if wanting their own interest kept quiet.  Suppose one cares and the other doesn’t?  Is it fair for one to know but not the other?  There is that word again, “fair”.  Trying to work this out once the situation comes up is too late. 

Let me add two thoughts.  First, this is not the same as a listing agent sharing the details of your client’s offer with another agent or having them let you know that other agents have made offers on a property that interests one or more of your buyer clients.  You must tell them that information.  However, you have no fiduciary duty to the listing agent, the seller or any other agent’s buyer clients.

My second thought is more of a question.  Suppose you write and present an offer for one buyer-client and it is rejected or countered without leading to having a signed agreement of sale.  Do you have the right or authority to tell another buyer-client the details?  While telling them what did not work with one buyer-client seems to make sense, perhaps that offer would work now if no one else has made a better offer.  Seller expectations do change.  Does telling another buyer how the seller countered an offer accomplish anything?  There is no guarantee that the seller would still be interested in that amount with a different buyer-client and, if the market is competitive, your current buyer client may only get one chance to make an offer.  Suppose you tell them a number and they lose.  An offer is more than the price and two buyers offering the same number may have very different terms and conditions.  Suppose the buyer-client whose offer failed decides to make another offer?

I am not trying to scare anyone but, if nothing else, I hope that people who read or listen to this will better understand how Real Estate works.  It is not retail where everyone is able to buy a product for a known price and there is ample supply.  Again, we do so much more than open doors and write contracts.  Real Estate requires experience, training and education.  It is not for everyone and it can get more complicated than it needs to be at any given moment.  Life would be easy if sellers would just accept their asking price or if buyers would just offer the asking price when they make an offer.  Of course, both of those statements are unrealistic if not ridiculous.  If they were true, you wouldn’t need a professional!  This is EXACTLY why I end my blogs and podcasts like this:

There is no time for inexperience, empty promises or false expectations.

HIRE WISELY:  We are not all the same!

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