Buying a house ranks among the biggest financial decisions of a lifetime. So when making an offer, it helps to have an escape hatch if something goes wrong. That hatch is called a real estate contingency.
What is a real estate contingency?
Typically included in the contract, contingencies aim to protect buyers and sellers should issues emerge in the period between accepting an offer and closing the sale.
“The transaction is typically 30- to 60- day process—it isn’t like walking into a store and buying an iPhone,” says Anurag Mehrotra, an assistant professor of finance at San Diego State University.
With properly worded contingencies, buyers can rescind their offer if, for example, they’re unable to get a home loan or an inspector flags a leaky roof. In short, they can walk away from the deal without losing their “earnest money,” the security deposit put down when the offer was made.
When the real-estate market is cooling, as it has been in many parts of the country over the past year, buyers are increasingly able to ask for contingencies and still remain competitive if there are other offers.
In theory, potential buyers can ask sellers for almost anything imaginable—like assurances that the house has “good vibes.” But in reality, there are five contingency clauses most commonly found in real estate contracts.
Contingencies to consider
Once an offer has been accepted, there is typically a 30-day period for due diligence, Mehrotra explains. A buyer can hire a third-party inspector or engineer to assess things such as the home’s foundation and structure, electrical wiring and plumbing, the heating/cooling system and kitchen appliances.
Many inspection reports reveal minor or cosmetic defects that are no cause for alarm, a ding on the refrigerator door, for instance. But when the report unearths major issues, an inspection contingency allows the buyer to tell the homeowner to rectify them or reduce the purchase price.
“This is a huge one,” Mehrotra says. “It helps with unforeseen problems.”
Indeed, Realtor.com found that the number of buyers asking for repairs after an inspection more than doubled between August 2021 and August 2022, with the majority of sellers saying the cash value of repairs was in the $10,000-or-less range.
(News Corp, parent of The Wall Street Journal, operates Realtor.com.)
Before it provides a mortgage, the lender will have the home appraised to ensure that its value meets or exceeds its purchase price. If the property’s valuation comes in low, buyers with an appraisal contingency are able to quash the transaction without losing their security deposit. Without that contingency, buyers would typically be on the hook to pay the difference upfront.
When the inventory of available homes is low but the demand from buyers is high, purchase prices are more likely to exceed appraised values. That dynamic was at play after the onset of the pandemic, when throngs of buyers sought larger homes. In January 2020, just 7% of home sales had a contract price above the appraised value, an analysis by real-estate data provider CoreLogic found. By May 2021, the frequency increased to 19% of transactions.
Since then, however, the demand for homes has eased—partly because rising interest rates have made mortgage payments less affordable. When sales are slower, bidding wars that jack up prices are less likely, which in turn helps close gaps between a home’s purchase price and its appraised value.
When buying a house, most people can’t exactly whip out their checkbooks. According to the National Association of Realtors, 78% of recent home buyers obtained financing to complete their purchase. A mortgage or financing contingency gives buyers some extra time to shop for the best lender and interest rate.
That time is especially essential today. In the early months of 2023, average mortgage-interest rates bounced around 6.5%—well above the 2021 lows of less than 3%. In general, higher interest rates lead to larger house payments, so some borrowers may have more difficulty qualifying for a mortgage. That’s because a key component of the lender’s decision is the borrower’s debt-to-income ratio, a measure of the applicant’s total monthly debt payments in relation to the total monthly earnings.
It’s helpful when potential borrowers are preapproved for a mortgage before house hunting begins, explains Vanessa Famulener, president of HomeLight Homes, a real estate technology company. That may be enough to assure sellers that the deal will go through even with a financing contingency in the contract.
Better yet is conditional approval from a lender before the home search begins, Famulener adds. With preapproval, the lender mainly looks at the borrower’s credit score, credit history, income and assets. With conditional approval, the underwriter has received and reviewed most or all of the documentation required to get a loan up to a certain amount. Assuming nothing changes—no job losses or change in marital status, for example—borrowers with conditional approval can feel confident about their creditworthiness, which may eliminate the need for a financing contingency entirely, Famulener says.
Over 56% of buyers are also selling a home, Famulener notes. And for most of them, selling is necessary before buying. First, they likely need the equity in their existing home to qualify for financing on their new home. And second, they can’t afford to make two mortgage payments every month. For both of these reasons, home-sale contingencies are commonly used in tight markets, Famulener says.
When including the home-sale contingency, it is important to include a time limit. Typically, the clause gives buyers 30 to 90 days after the contract is signed to sell their home. Without a time frame, buyers and sellers are left in limbo.
Facing a home-sale time crunch, some buyers turn to companies that pay cash for their current home. Terms vary widely among these companies, with some requiring homeowners to pay service fees, broker commissions, taxes and/or closing costs.
Before a home sale closes, a title search is performed to ensure there are no issues over ownership, such as liens against the property for things such as unpaid taxes, outstanding loans or overdue contractor fees.
A title contingency allows the buyer to back out of the deal if the title search flags ownership concerns. However, this contingency is less common because most purchase agreements already include a clause that voids the sale if title issues emerge, Famulener says.
Even if they waive a title contingency, buyers are typically required to purchase title insurance. This policy covers them—and their lender—if ownership issues arise down the road, such as an undisclosed heir. The premium is generally a one-time fee paid to the title company at closing.
Will contingencies hurt my chances in a bidding war?
While contingencies of all types give buyers some wiggle room when making an offer, contingencies can also hurt your chances of getting the house of your dreams.
In Milwaukee, first-time home buyers Drew and Lyn Buus, both 26, made offers on seven homes between March and mid-May—losing out each time to other buyers, most likely because of contingencies.
In one instance, the couple bid $303,000 for a three-bedroom, 1½ -bathroom house in Wauwatosa, Wis., that was listed for $273,000. They included inspection and appraisal contingencies, but also said they would cover up to $5,000 if there was an appraisal gap and up to $5,000 if the inspection showed necessary repairs.
After just one day on the market, the house had 33 offers, eventually selling for $293,000. “We offered more and it sold for less,” Buus says. “We never heard back [from the sellers], but we assume contingencies were waived” in the winning bid.
For now, he and his wife—and their dog Bailey—are staying put in a house they’re renting in Milwaukee’s Bay View neighborhood. “I feel strongly that you shouldn’t waive the inspection and appraisal contingencies,” says Buus, a supply-chain specialist for a medical manufacturer.
“It’s one of the largest financial decisions you’re going to make,” he says. “If something goes wrong, you’re on the hook.”
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