Can A Seller Still Back Out After We Agree To His Counter Offer?

Dave,

We recently made an offer on a house and the seller sent us a counter offer that we agreed to, but then we received word that he had changed his mind and was going to sell the home to another buyer. We feel like he made a deal and he should have stuck to his word and had to sell it to us. We feel we lost out on the perfect home and we are now struggling to get in the mood to find another home. We have lost our oomph.

Dale & Nicole, Grand Junction

Dale & Nicole,

No doubt you are feeling “wronged” by this sellers actions, but it may have well been within his rights to not sell you the house, even after a counter offer was given. When the seller made you the counter offer, I am assuming, that it was in writing. A seller has the option to withdraw a counter-offer any time prior to your “accepting” the counter offer in writing and delivering it to the seller’s agent. If your acceptance was in writing prior to the counter-offer being withdrawn and was delivered to the seller agent, then you would have a binding contract on both parties. If this was the case the seller should honor the contract and in the state of Colorado, close the transaction with you as long as you abide by the dates and deadlines of the agreed upon contract.

If any part of this offer/counter-offer process was done verbally, then you would have some significant gray area. Verbal offers and counter-offers are often used by agents throughout the process of negotiations, but when doing this you open the door to many, much more significant issues and misunderstandings that often times lead to problems. If you only accepted verbally or the counter offer was made verbally, then I would say that you do not have much of a case. Without written and signed contracts, enforcement becomes a larger issue and inevitably it comes down to he said/she said. You would need to weigh the cost/benefit of attempting to hold the seller to a verbal commitment and I believe that would be very difficult to achieve.

Things do not always work out the way we think they should and often times in negotiations people change their mind on an ongoing basis, I see it every day.  The best rule of thumb is to do everything in writing and be prepared to respond promptly and make sure you respond in writing. Communication is difficult, even under the best circumstances, this is part of the reason why we have contracts and we do our best to make sure all negotiations are done on paper. Contracts should spell out the terms and conditions and remove interpretation or changes of mind from the equation.

Please remember this is not legal advice and I always recommend you speak to an attorney and see if you have any legal grounds for recourse, he/she will be able to steer you in the right direction. Don’t lose hope because of this set back, doors open and doors close and maybe an even more perfect home is right around the corner. Keep the faith.

Dave Kimbrough
The Kimbrough Team