Common contingencies in real estate, explained

When you’re working on the computer, the “undo” button can be an invaluable tool. So can a contingency clause when you’re looking to buy or sell a home.

Contingency clauses provide a way for one or both parties to back out of a real estate contract if certain specified conditions are not met. In other words, the sale is contingent upon these conditions. Common contingencies in real estate include an appraisal contingency, inspection contingency, sale contingency or funding contingency.

What is a real estate contingency?

In real estate, a contingency refers to a clause in a purchase agreement specifying an action or requirement that must be met for the contract to become legally binding. Both the buyer and seller must agree to the terms of each contingency and sign the contract before it becomes binding.

A contingent contract gives both parties some wiggle room if the conditions are not met. Contingency clauses “safeguard buyers and sellers by giving them the right to cancel a contract if the terms aren’t met,” says Carlos Del Rio, a real estate attorney in Chicago.

One common example is when one or both parties need to wrap up other real estate deals in order for the transaction to close. For instance, a home seller may agree to an offer with the contingency that they must find a new home before they sell. If they are unable to find another home within a specified time frame, they may cancel the deal without penalty — so long as this contingency is spelled out in the contract.

Not to be confused with a ‘contingent listing’

Contingencies and contingent listings are often mixed up, but they are not the same thing. A contingent listing is an on-the-market home listing that is under contract, but not yet officially sold — an offer has been made and accepted, but before the home can reach final sale, some conditions, or contingencies, still need to be met.

6 common contingencies

Many types of contingency clauses can be added to a real estate contract. Here are some of the most common:

1. Mortgage contingency

This clause specifies a window of time in which the buyer must obtain financing to purchase the home. If the buyer doesn’t secure a mortgage loan by that deadline, they can withdraw from the deal without penalty and the seller can put their home back on the market and choose a different buyer.

2. Title contingency

This “provides the purchaser the right to obtain a title search and raise any objections to the status of the title to the property, which must be cleared by the seller in order for the purchaser to close on the transfer of title,” says Allen Popowitz, chair of the real estate practice at Brach Eichler law firm in Roseland, New Jersey.

3. Home inspection contingency

This clause involves the window of time the buyer has to get the property professionally inspected. The home inspection helps ensure there are no serious issues, such as a leaky roof, a faulty electrical system or structural defects. “If it turns out the property has defects, and the seller elects not to repair or remediate the issues which are raised by the buyer, the buyer can terminate the contract,” Popowitz says.

4. Sale of a prior home contingency

This protects buyers who need the cash proceeds from the sale of their existing home to be able to afford a new home. “With this clause, if the buyer needs to sell their current home by the deadline indicated in the contract, but they cannot find a buyer, they can escape the real estate contract,” says Michael Noker, a Realtor with Realty One of New Mexico in Albuquerque.

If a traditional buyer can’t be found in time, a real estate “power buyer” or iBuyer may be able to step in and provide a quick offer. iBuying activity has slowed down recently, but many markets are still hot enough that companies are actively looking to purchase (and flip) properties.

5. Appraisal contingency

Appraisal contingencies safeguard the buyer by stipulating that the property must appraise for the indicated sales price, at minimum, or the contract can be nullified. This is because banks don’t like to loan money to borrowers for a house that costs more than it’s worth. This clause may also indicate that the seller can opt to reduce the price to the appraised value.

6. Homeowners insurance contingency

This clause stipulates that the buyer must apply for and obtain homeowners insurance on the property. If they can’t get the necessary insurance, either party can withdraw from the contract. This is often requested by either the seller or the mortgage lender.

What happens if a contingency isn’t met?

When a contingent condition fails to be met, “either party may consider the contract null and void,” Del Rio says. “Doing this allows either party to cancel the deal and pursue other prospects.”

For example, if a property under contract doesn’t appraise for its expected value, the financing for the purchase is put at risk of cancellation. “Here, the buyer or seller can either choose to cancel the contract, appeal the appraisal or mutually renegotiate the purchase price to accommodate for the [lower] appraised value,” Del Rio says. Indeed, either or both parties can suggest compromises and reopen negotiations in the hopes of keeping the deal from falling through.

“Say the buyer is unable to get the mortgage loan they need to purchase the property,” Popowitz says. “They would typically have the right to terminate the transaction, but the parties can always agree on additional time for the buyer to continue to pursue other avenues to obtain the loan.”

Contingencies and earnest money

Contingencies are also tied to the earnest money, or “good faith deposit,” a buyer often puts down when going under contract on a home. If a contingency isn’t met, the buyer usually gets that deposit back.

“This earnest money is held in escrow by a third party,” Noker says. “If the buyer defaults on the terms of the real estate contract, the seller gets to keep the earnest money, but if the buyer puts certain contingencies in the contract that allows them to terminate the contract legally, the buyer can have their earnest money refunded to them. In this way, contingencies serve as an emergency escape hatch for buyers.”

Contingencies homebuyers should always include

Not too long ago, the real estate market was so frothy that desperate buyers were waiving contingencies and engaging in bidding wars in order to secure a property. But things have calmed down considerably in recent months.

Under normal circumstances, buyers should always include a financing contingency in their purchase agreement, says Ralph DiBugnara, president of New York City–based real estate website Home Qualified. In fact, he says, “this is required in almost all states. With this in place, if your mortgage is denied for any reason, including a low appraisal, you have the right to get your deposit money back.” Given the recent decline in home prices around the country, an appraisal contingency may be vital as well.

Del Rio advises making the sale contingent on homeowners insurance, even if your lender doesn’t require it. Homebuyers who need to sell their existing home first before buying a new one should also protect themselves with a sale contingency, he suggests: “This helps relieve some of the stress that Realtors, attorneys and lenders may have in anticipation of the deal.”

Additionally, don’t skimp on adding a title contingency. You want to make sure the home you’re buying doesn’t have any liens on it and is being sold by the property’s rightful owner. “This ensures that you’re going to purchase a property that has marketable title without defects that can come back to haunt you,” says Popowitz.

But be cautious — especially in a seller’s market

Contingencies offer valuable legal protection. But buyers should be careful not to clutter the contract with too many of them, particularly in a strong seller’s market. In many areas, sellers still have the luxury of choosing among multiple offers. “An issue buyers may run into with contingencies is having a less competitive offer,” Noker cautions. In other words, buyers who don’t make special requests, or are willing to waive contingencies, may seem more appealing to a seller who holds all the cards.

Sellers should also be careful not to negatively affect their bargaining position. “Often, sellers are so caught up in the joy of selling their home that they tend to shortchange themselves, which can happen if they choose to add contingencies to the contract,” says Del Rio. “I recommend that sellers include language to make the contract ‘as-is’ in nature, which allows the seller to wipe their hands clean and deny any proposals for repairs or closing credit once the closing date arrives.”

Find a trusted agent

The choice as to which contingencies to include in a contract and the specific terms involved should be considered carefully. That’s where an experienced real estate agent and/or attorney can come in handy. An experienced agent can help you navigate the minefield successfully — work closely with one to ensure that you’re bargaining from a position of strength, and have a fallback plan in case things don’t go your way.

FAQs

• What are the most common contingencies?

  Some of the most common real estate contingencies include appraisal, mortgage, title and home inspection contingencies. Many home buyers also include a sale of prior home contingency, which allows them to withdraw an offer if they are unable to sell their current home within a specified timeframe.
  

• Is there a difference between contingencies and a contingent listing?

  These two terms are related but different. Contingencies refer to specific requirements set out in a contract in order for a real estate deal to close. If a property is under contract but the contingencies are not yet met, it is often called a contingent listing. Buyers should be aware that they may have to wait longer to get an answer on their offer for this type of property.
  

• What does buying a home with no contingencies mean?

  A real estate contract with no contingencies does not have any clauses that outline specific requirements that must be met for the deal to go through. These purchases may close more quickly, but they also provide less protection in case something goes wrong.