I recently listed a home for sale in the Mueller Garden Court, and the seller received an offer under the doormat of her home. The prospective buyer had decided not to use a real estate agent to put together the offer, and the seller dutifully scanned it and sent it to me.

Most agents will use one of the Texas Real Estate Commission’s promulgated forms to submit an offer. In fact, our real estate license dictates that if there is a form that we can use, we should use it, unless either the buyer or the seller has asked to use their own format. This might happen if you are selling your home to a wholesale buyer (one who intends to assign it before closing, and thus wants certain safeguards in their that protect themselves as a buyer).

So the most common form for a resale home is the option-based residential purchase contract. It allows a buyer to lay out all of the purchase terms and then buy an option to buy the home. So it might be that the buyer pays $150 for the right to buy the home, and that $150 is no-refundable. The buyer can also opt out of the contract for any reason during that option period, and not default on the contract. The offer we received was not an option contract, nor was it on a promulgated form. It was hand-written.

I am not a lawyer, and so I’m not permitted to practice law. That’s why the Texas Real Estate Commission gives me forms to fill in. The elements of a legally binding contract are (as I understand them) as follows:

  • Acceptance in strict compliance with the terms of the offer – in practice, both parties must sign the same offer with no changes between signatures
  • Legal Purpose/Objective – i.e. it can’t be binding if it agrees on the performance of an illegal act
  • Mutuality of Obligation – also known as the “meeting of the minds”
  • Consideration (amount of money typically)
  • Competent Parties – no-one can be crazy, drunk or a minor. (or all three)

My advice to the seller is to respond using a promulgated form – one in which all of the elements above are laid out. If we proceed with the offer as written, my advice would be to seek legal counsel.

Garreth Wilcock sells homes in Austin. 512 215 4785

 

 

 


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