If you’re thinking about buying a home in Massachusetts, you’ll need to be familiar with the Offer to Purchase. This legal document is a crucial step in the home-buying process and outlines the terms of the transaction. In this guide, we’ll explain some important things to think about when submitting an Offer to Purchase in Massachusetts. It is always wise to have your offer reviewed by a real estate attorney prior to submission. Please contact us if we can assist.
What is an Offer to Purchase?
An Offer to Purchase is a legal document that outlines the terms and conditions of a real estate transaction. It is typically prepared by the buyer and presented to the seller. The Offer to Purchase will include details such as the purchase price, financing terms, and the date of closing. Once the seller accepts the Offer to Purchase, it becomes a binding contract.
Making an Offer to Purchase in Massachusetts is a critical step in the home-buying process because it sets the terms and conditions of the transaction. It also ensures that both the buyer and seller are on the same page and agree to the terms before moving forward with the purchase.
One of the most important aspects of the Offer to Purchase is that it can be a BINDING contract even if a Purchase and Sale Agreement is never signed. In McCarthy v. Tobin, 429 Mass. 84, (1999), the Massachusetts Supreme Judicial Court held that if an Offer to Purchase real estate is in writing, contains all material terms, and appears that the parties intended to be bound, they are required to close the deal even if a Purchase and Sale Agreement has never been signed.
Key Elements of an Offer to Purchase
There are several key elements that you must include in an Offer to Purchase. These include:
- Purchase Price: The purchase price is the amount that the buyer is willing to pay for the property. This amount should be clearly stated in the Offer to Purchase.
- Closing Date: The closing date is the date on which the transaction will be finalized. This date should be mutually agreed upon by both the buyer and seller. It is best to pick a date that is not the final business day of the month or a day before or after a long weekend.
- Mortgage Contingency Date: This date protects the Buyer’s deposit if financing cannot be secured by a particular date. The buyer can typically terminate the transaction for a return of deposits if the buyer complies with the terms of this paragraph and simply cannot be financed. While this date is negotiable, it should be no less than four weeks after signing the purchase and sale agreement unless the buyer’s mortgage lender can move more quickly.
- Home Inspection Contingency: In some instances, Buyers waive the right of inspection to make their bid more attractive to the seller. Home inspections for residential real estate are common and, absent compelling circumstances, should not be waived. If the buyer waives an inspection, and a problem develops, it is unlikely that the buyer will have any recourse. If the inspection cannot take place until after the signing of the Purchase and Sale Agreement, then an appropriate contingency must be placed in the Purchase and Sale Agreement. However, to add it to the Purchase and Sale Agreement, it must first be reserved in the Offer to Purchase like all other contingencies.
- Purchase and Sale Agreement Signing Date: The date on which the Purchase and Sale Agreement will be signed. You must allow for enough time to perform a home inspection. Ten days after signing the offer is typically reasonable.
- Earnest Money: Earnest money is a deposit that the buyer provides as a show of good faith. This money is typically held in an escrow account until the transaction is completed. A buyer will want the deposit terms to be as low as possible while the seller will want them to be as high as possible to make it more difficult for a buyer to simply walk away. A typical deposit with the Offer to Purchase is normally about $1,000.00. A typical deposit upon signing the Purchase and Sale Agreement is usually 5% of the purchase price (less what was paid a the time of the offer).
- Additional Contingencies: Note any other contingencies you might need such as appraisal, condominium document review, etc.
Making an Offer in MA and the Closing Process
Now that you understand some of the key elements of an Offer to Purchase, let’s take a look at the real estate closing process of making an offer in Massachusetts.
Step 1: Determine Your Budget: Before you start looking at homes, it’s important to determine your budget. This will help you narrow your search and ensure that you are only looking at homes within your price range.
Step 2: Find a Home: Once you’ve determined your budget, it’s time to start looking for a home. You can work with a real estate agent to help you find homes that meet your criteria. You can also search online listings and attend open houses.
Step 3: Prepare Your Offer to Purchase: Once you find a home that you’re interested in, it’s time to prepare your Offer to Purchase. You can use a Massachusetts standard form offer provided by your real estate agent or attorney. Be sure to include all of the key elements specific to your transaction. Typically, providing the seller with twenty-four to forty-eight business hours to accept is reasonable.
Step 4: Present Your Offer to Purchase: Once you’ve prepared your Offer to Purchase, it’s time to present it to the seller. Your real estate agent typically handles this on your behalf. The seller will have the option to accept, reject, or counter your offer.
Step 5: Negotiate the Terms: If the seller counters your offer, you’ll need to negotiate the terms until both parties are in agreement. This may involve multiple rounds of negotiations.
Step 6: Sign the Purchase and Sale Agreement: Once both parties have agreed to the terms, the next step is to sign the Purchase and Sale Agreement. This is a more detailed contract that outlines the specifics of the transaction. The initial draft of the Purchase and Sale Agreement is prepared by the seller’s attorney.
Step 7: Pay the Earnest Money Deposit: After the Purchase and Sale Agreement has been signed, the buyer will need to provide the balance for any earnest money deposit as a show of good faith. The amount of earnest money will vary depending on the purchase price of the property, but it is typically around 5% of the purchase price less what was paid with the offer.
Step 8: Perform Due Diligence: Before the transaction can be completed, the buyer and the buyer’s attorney will need to perform due diligence (like a title exam search). If certain issues are uncovered during this process, the buyer may have the option to renegotiate and terminate so long as the issue is addressed in the Purchase and Sale Agreement.
Step 9: Close the Transaction: Once all contingencies have been met, and your mortgage lender is ready, it’s time to close the transaction. The closing attorney will oversee the closing and coordinate the signing and recording of all necessary documents at the Registry of Deeds.
Making an Offer to Purchase in Massachusetts is an essential step in the home-buying process. It’s crucial to understand the key elements of the Offer to Purchase, as well as the steps involved in the process. Working with a knowledgeable real estate agent and attorney can help ensure that the transaction goes smoothly. By following these steps and doing your due diligence, you can make an informed and confident offer on your dream home in Massachusetts. Contact the real estate lawyers at Silveri + Wilson | Halcyon Closing + Escrow if we can assist you with the process of buying or selling a home.