How to Handle Backup Offers: The Right Way to Respond

Q: When a seller is offering a back-up position to a buyer and accepts all the other terms of the Sale Agreement, which box does the seller check in Section 51 in response? They are accepting the terms, but they have previously agreed to sell to another buyer.

A: Any modifications to an offer by the recipient are considered a counteroffer. When a buyer makes an offer on a property, the offer paperwork places the buyer in the first position. If the seller wishes to put them in a back-up position behind another offer they’ve previously accepted, they must counter the buyer’s offer, requesting the buyer accept the back-up position, because that is a change to the buyer’s original offer, even if it is the only change. The seller would check the counteroffer box in Section 51 of the Sale Agreement and attach OREF 003 – Seller’s Counteroffer. In that counteroffer, the seller would notify the buyer that they accept the terms as presented, except they propose to place the buyer in a back-up position. They would then reference the OREF 009 – Back Up Offer Addendum attachment and complete that form as part of their counteroffer.

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