Understanding the Importance of a Non-Contingent Offer

Making a non-contingent offer can dramatically increase your chances of securing a real estate transaction, particularly in competitive markets like New York City. However, buyers should understand that waiving contingencies, including those related to financing, or appraisals, also comes with significant risks. Determining your best strategy requires careful analysis of the property, the market, and the potential legal and financial consequences.

Real Estate Contingencies

Contingencies are certain conditions that must be satisfied in order for a real estate transaction to proceed. They protect the buyer’s earnest money deposit because until the contingency is satisfied, the buyer can cancel the deal and get their deposit back. The most common contingencies include: financing contingency, appraisal contingency, and a title contingency.

The buyer initially determines which contingencies (if any) to include in the offer. The seller can accept the offer or make a counteroffer that removes a contingency or alters the contingency period. A contingency date is the deadline specified in the purchase and sale agreement by which the buyer must waive or satisfy the specified condition.

When a buyer submits a non-contingent offer, they agree to waive some or all contingencies and assume the risk and liability that may result. For instance, a mortgage contingency allows a buyer to cancel a purchase and sale agreement without losing money if they are unable to secure sufficient financing.

Benefits of Making a Non-Contingent Offer

There are several reasons why a buyer would make an offer without contingencies. Below are some of the most significant:

• Stand Out from the Competition: A non-contingent offer shows that the buyeris seriously committed to the transaction and financial prepared to proceed. So, if there are multiple offers on a property, making a non-contingent offer can increase your chances of acceptance.
• Streamline Negotiations: The lack of contingencies can streamline a real estate transaction and make negotiation more straightforward.

• Fast-Track the Transaction: A non-contingent offer also helps ensure that the transaction will proceed quickly as there are fewer potential roadblocks.

Risks of Making a Non-Contingent Offer or No-Contingency Offer

While non-contingent offers can be appealing, they come with significant risks. Below are a few to consider:

• Risk of Waiving Mortgage Contingency: If the buyer fails to secure financing, they must cover any shortfall in cash. Without a mortgage contingency, the buyer can’t cancel due to lack of funds without breaching the contract.
• Risk of Waiving Appraisal Contingency: Similarly, if the property does not appraise at the agreed price, the lender may not approve the required loan amount, and you may need to make up the difference.

For sellers, no-contingency offers are very attractive. Nonetheless, it is important to verify that buyers making a non-contingent offer have sufficient funds for a down payment or the entire purchase price, particularly when making an all-cash offer or an offer waiving a financing contingency.

Consult With an Experienced Real Estate Attorney

For buyers who can afford to risk their deposit and absorb any other costs of cancelling the contract, a non-contingent offer may make sense, particularly in a seller’s market. If not, buyers should seriously consider the risks and benefits. There may also be other options —experienced real estate attorneys can often negotiate a deal that is attractive to the seller, but still offers legal protections.

Whether you are looking to buy or sell a property, the best course of action is to seek the assistance of seasoned professionals. At Scarinci Hollenbeck, our experienced real estate attorneys are intimately familiar with the New York City real estate market. We can help negotiate a deal that accomplishes your goals, while also safeguarding your legal rights.