Counter offer after rejection 

When the buyer made an offer on a property about a month ago, the parties could not come to an agreement, and the seller rejected the buyer’s offer. The buyer wants to make a new offer with a different price. Can the buyer initiate a counter-offer, or does the broker have to draft a whole new offer? 

The counter-offer is essentially a new offer that incorporates many, if not most, of the terms and provisions of the previous offer. The counter-offer may be written after expiration of the acceptance period in the offer and may be used even if the seller rejected the offer. The only relevant deadline in the counter-offer is the acceptance date set forth in the counter-offer.

Acceptance 

The acceptance timeline on a WB-44 Counter-Offer gives the buyer until the 31st of the month. The buyer signed it and delivered it after the deadline. Is there a contract? Does the broker use a counter-offer or an amendment to extend a missed acceptance deadline? 

The counter-offer is not accepted and not a part of the contract if and when the binding acceptance time lapses. To create a contract, the counter-offer must be accepted and delivered before the deadline, therefore the late signature and delivery does not create a contract — at best it shows that the buyer would agree to the terms set forth in the seller’s latest counter-offer. Because a contract has not been formed and the parties are still negotiating, the preferred method for a licensee to extend the acceptance deadline is by using a new WB-44 Counter-Offer. The new counter offer will be the same as the prior counter-offer except for an extended binding acceptance date at line 32. The new counter-offer does not incorporate the terms of the previous counter-offer unless rewritten into the body of the WB-44 or incorporated by reference. See the instructions on lines 48-51 of the WB-44. Either the buyer or seller could initiate the new counter-offer to continue negotiations. 

Timely presentation 

After showing the home, the cooperating agent wrote an offer on July 5 and the binding acceptance date was July 8. The listing agent received the offer on July 5 but did not present the offer until July 15. The seller accepted an offer from a second buyer. The listing agent did not let the first cooperating agent know that there was another offer. Is this ethical and/or legal?

Wis. Admin. Code § REEB 24.13(2)(b) states: “Licensees shall present promptly all written proposals received to the licensee’s client or customer. Licensees shall not withhold any written proposals from presentation pending the party’s action on a written proposal previously presented.” Additionally, Wis. Admin. Code § REEB 24.13(3)(a) states: “Licensees shall present all written proposals in an objective and unbiased manner to their clients and customers. Licensees shall inform their clients and customers of the advantages and disadvantages of all submitted written proposals.”

Presuming the offer was presented, a seller is not required to respond to the offer. Once the binding acceptance date passes, the seller’s inaction may reflect either indecision about the offer or a knowing rejection thereof. If the offer is not accepted but the buyer remains interested in the property, the buyer can initiate counter-offer number 1 to extend the binding acceptance date, thereby informing the seller of his continued interest in the property. 

The Wisconsin Administrative Code and the Code of Ethics regulate the sharing of information about pending offers on a property. Wis. Admin. Code § REEB 24.12(1) states in part, “A licensee may, but is not required to, disclose information known by the licensee regarding the existence of other offers on the property, the fact that a seller has accepted an offer, that the offer is subject to contingencies and that the offer is subject to a clause requiring removal of certain contingencies upon the occurrence of an event such as receipt, acceptance or conditional acceptance of another offer.” Therefore, unless the seller has required the broker to keep confidential any information about offers on the property, the agent may disclose the existence of other offers. 

Standard of Practice 1-15 provides, “REALTORS^®, in response to inquiries from buyers or cooperating brokers shall, with the sellers’ approval, divulge the existence of offers on the property. Where disclosure is authorized, REALTORS^® shall also disclose, if asked, whether offers were obtained by the listing licensee, another licensee in the listing firm, or by a cooperating broker. (Adopted 1/03, Amended 1/09).” Therefore, with the seller’s approval and prior to the acceptance of an offer to purchase, the agent shall disclose information about other offers. If, however, the seller directs the agent not to disclose, the broker may document this fact and follow the instructions of the seller. 

Multiple counter-proposal 

A buyer who received a Multiple Counter-Proposal was given five days to give buyer approval. The listing broker called on the second day and said the seller had accepted the other buyer’s offer. Didn’t the buyer have five days to respond? 

Although the Multiple Counter-Proposal allowed the buyer five days to approve the terms of the WB-46 she received and return it to the seller, it does not prevent the seller from accepting another offer in that time frame. Timely response to a multiple counter-proposal will allow the seller to know that the buyer would be willing to enter into a contract on the terms proposed by the seller in the WB-46. If the buyer wishes to change any of the terms and conditions, the buyer may initiate a WB-44 Counter-Offer rather than approving the seller’s multiple counter-proposal. 

The broker wrote an offer and submitted it to the listing broker, and the seller responded with a multiple counter-proposal. The buyer would like to counter the multiple counter-proposal. What is the numbering on the counter-offer by the buyer?

In general, the numbering of counter-offers is consecutive, regardless of who initiates the next counter-offer. In a case like this where the seller did not use a counter-offer, the buyer may initiate counter-offer number 1. The number designation refers to the total number of counter-offers that have been issued in the transaction, not to the number of counter-offers issued by the particular party. The WB-46 Multiple Counter-Proposal would not be considered the same thing as a WB-44 Counter-Offer to be included in that count. 

Present all offers

An agent from a cooperating company writes an offer and delivers it to the listing broker. The broker points out to the agent that several issues in the offer need attention, such as spelling errors, addenda that are not incorporated by reference, and issues relating to the restrictive covenants. The selling agent retrieves the offer and brings it back to the listing office several hours later with corrections and additions, but the buyer had not initialed the changes. Is this acceptable? 

Offers, whether incomplete, poorly drafted or not on approved forms, must be presented to the seller because Wis. Admin. Code § REEB 24.13(3) provides that a listing broker will timely present all proposal for the seller’s consideration, unless it is contrary to the seller’s instructions. It is not the role of the brokers to unilaterally reject or modify offers without direction from the parties to the transaction. Once presented to the seller, the seller may counter the offer to address the mistakes, corrections or additions in the offer. The counter-offer is also the appropriate document for a broker to use if a buyer wants to modify his or her own offer. Although a party may make changes and initial them on the offer, by doing so, the party is creating a counter-offer. If a party makes changes on the offer, the changes should be initialed by all parties to minimize later claims that the changes were not authorized. Prudent licensees would use the WB-44 Counter-Offer because it allows the parties to clearly identify any changes and clarifications, include a new binding acceptance date and have blank lines for signatures to clearly demonstrate the meeting of the minds of the parties, rather than tracking a series of tiny initials and dates written on the page. 

Withdrawal 

How can a party withdraw a counter-offer once it has been submitted? After delivering a counter-offer to the buyer, the seller received a better offer from another buyer. The listing agent contacted the first cooperating broker and asked specifically if the buyer had accepted the seller’s counter-offer. The cooperating agent said the counter was not accepted and not delivered. The listing agent verbally withdrew the seller’s counter-offer. The cooperating agent said the notice must be in writing, so while on the phone the listing agent faxed a withdrawal of the counter-offer. Can the buyer still accept and deliver to create a contract?

A party who has made an offer or counter offer is, in all but relatively few situations, able to withdraw the offer any time prior to its binding acceptance. The law requires the party withdrawing the offer to notify the person in receipt of the offer that the offer is withdrawn. If the notice of withdrawal arrives before a binding acceptance, per the terms of the contract, the offer becomes null and void. Any attempt at acceptance of the offer thereafter, even if prior to the stated time limit for acceptance, will have no legal effect.

Notice of withdrawal does not technically have to be in writing. However, the party attempting to withdraw the offer must make certain that proof is available that the offer has not already been accepted. If it can be verified, and hopefully documented, that the offer had not been accepted, then notice of withdrawal is less likely to be challenged. Although this is ultimately a matter for legal counsel to review, given the apparent timely withdrawal of the counter-offer in the described situation, any subsequent delivery would not create a contract. 

Online Resources

November 2001 Legal Update, “Best of the Legal Hotline-Offer to Purchase Issues” at www.wra.org/LU0111
September 2006 Legal Update, “Contract Law Basics” at www.wra.org/LU0609

Tracy Rucka is Director of Professional Standards and Practices for the WRA.