Interested in a home that’s listed as “sale pending” but you’re not sure what it means? In real estate, a pending sale means that the seller has accepted an offer but the deal isn’t complete. You may be allowed to make a backup offer on this home, so it’s not necessarily out of your reach.
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When a seller accepts a homebuyer’s offer and signs a purchase agreement contract with them, the seller’s broker must report it to the Multiple Listing Service (MLS) as a “sale pending” property. The MLS is a database of homes that are on the market.
“Pending means that the seller and a buyer have reached agreement on a written contract,” says Jeff Satre, a production manager with Fairway Independent Mortgage Corporation (which owns Home.com) in Ashburn, Va.
Although a pending status indicates that an offer has been accepted, that doesn’t mean it’s a foregone conclusion.
“The transaction has not yet completed. The moment a contract is signed, the property is marked as pending,” explains Lyle Solomon, principal attorney for Oak View Law Group in Rocklin, Calif.
At that point, the seller cannot accept other offers, even if they include higher bids for the home. They’ve committed to selling the home to the buyer whose offer they accepted, assuming the buyer follows through on the contract terms and decides to move forward with the purchase.
However, that doesn’t mean you’re out of the game if a home you like is listed as pending.
“Homebuyers can write on pending homes, but it would be a backup offer to the pending offer,” Satre says.
Backup offers are sometimes allowed, Solomon explains, because if the initial deal falls through, the seller may want to have others lined up. Sellers and their real estate agents don’t have to accept back-up offers, and they often won’t. But if you see a house you’re really drawn to, it’s worth having your real estate agent ask whether it’s an option, just in case.
Sometimes you’ll see a home listed as “contingent,” rather than pending. The two are similar, but there is an important difference.
A real estate listing marked as a contingent sale indicates that the seller and buyer have signed a purchase agreement, but that certain conditions must be fulfilled before the sale can close.
“Several contingencies may apply to the property, including contingencies related to obtaining financing, a home inspection, title search, and a kick-out clause condition,” Solomon notes. “If any of these contingencies are not met, the agreement may fall apart.”
The financing contingency refers to the buyer being able to secure a loan for the home. A home inspection contingency has to do with the condition of the property. A buyer may include requirements in the contract that the home must pass certain inspections before the sale can go ahead.
Similarly, a home appraisal contingency protects the buyer if the home appraises for less than the purchase price.
Such contingencies allow buyers to cancel the sale contract without losing their earnest money.
The kick-out clause is important to pay attention to because it allows sellers to continue showing the home to other buyers, even though they’ve accepted an offer. This is common when the current buyer’s contingent offer has a home sale contingency. A home sale contingency stipulates that the sale cannot go through until the buyer is able to sell their current home.
If your offer includes a home sale contingency, the seller might require a kick-out clause. This would allow them to accept offers from other buyers who do not require any contingencies and cancel their deal with you.
As with a home listed as pending, if you see a property you like listed as contingent, you can have your real estate agent ask whether the seller is taking additional offers.
But once the contingencies have been met and the home is listed as pending, the seller has committed to the deal. While they may still accept back-up offers, they can no longer back out of the deal without penalty, as long as the buyer upholds their end of the contract.
Pending home sales fall through for a number of reasons:
- The home appraises for less than the purchase price, and the buyer’s lender will not give them a home loan for more than the appraised value
- The home inspection reveals serious deficiencies in the property, and the buyer backs out of the sale
- The seller refuses to negotiate on needed repairs, and the buyer backs out
- The buyer’s current home doesn’t sell quickly enough to close on the new home
- The buyer did not get preapproved and cannot obtain financing to buy the home
- Buyer’s remorse kicks in, and the buyer cancels the deal because they no longer want the home or are uncomfortable with the purchase price
Technically, a pending home is still officially available on the market, according to Solomon. That means your agent is permitted to show it to you as a potential buyer so long as the home’s seller and listing agent agree.
“However, most real estate agents won’t do this because home purchases typically go through,” cautions Solomon.
“If a seller is accepting backup offers after their home is marked pending, it’s highly unlikely that any real estate agent would show the property because the likelihood of it becoming available again is slim,” he says. “Many agents will not waste time showing homes that are pending, and most sellers of sale pending homes will not allow showings to occur.”
If a home you’re interested in is listed as “sale pending,” make sure you have realistic expectations if you submit a back-up offer.
|You may be first in line if the initial deal falls through||Sellers and listing agents are often reluctant to accept back-up offers|
|You can look at other properties while waiting to hear if your offer is accepted||There may be multiple back-up offers you’re competing against|
|Purchase price is locked in at your original offer, even if home values increase||If your offer is accepted, you’re committed to the purchase, even if you found another home you prefer|
“If a home is marked pending, an outside buyer cannot overbid the accepted offer because the seller is locked into an agreement,” Gelios says.
While you are legally allowed to attempt to make an offer on a pending property, chances are that the owner and listing agent won’t be interested. In fact, the seller can simply use your back-up offer to negotiate a better deal with the first buyer.
“On the seller’s side, a backup offer gives the seller more negotiating power with their first buyer by pressuring them to move forward with the purchase and not nitpick over certain items after inspection,” adds Gelios. “If I am a home seller and I’ve received a backup offer, I don’t have to give in to demands from the initial buyer because I have another option to fall back on. This is why it’s often not beneficial to the second buyer to even make a backup offer.”
However, if the initial buyer cancels his or her offer, your backup offer as the second buyer will instantly kick in, according to Solomon. That doesn’t necessarily mean you’re at the head of the line.
“Realize that sellers can sign several backup offers. If there are four backup offers, for example, you could be in fourth place, which means your odds of purchasing the home are incredibly slim,” Solomon says.
Sellers may receive numerous offers in areas where bidding wars are common and there are more homebuyers than there are available properties.
On the upside, if you are in a backup position, you are free to look at other properties on the market while you wait.
“If needed, you may be allowed to cancel your backup offer if you find a different house you prefer,” adds Solomon.
But you’ll want to be cautious about how many back-up offers you submit. “You want to be careful before creating multiple backup offers on different properties. This is risky, since you may wind up committing to the purchase of several homes,” Solomon says.
In summary, making a back-up offer on a home with a pending sale is a long shot. But that doesn’t mean there’s no shot.
“On one hand, you never know – the other deal may not go through. Several of my clients were in backup offer positions and got the homes they wanted because the initial buyers backed out,” says Jessica Felix, broker associate for Rodeo Realty in Sherman Oaks, Calif. “On the downside, making a backup offer gets your hopes up, which can be crushed if the initial offer goes through.”
Note that, if the seller accepts your backup offer (and yours is the only back-up), they won’t be able to sell the property to anyone else if the initial offer doesn’t proceed.
“It also means that you will purchase the property at the agreed-upon price, regardless of market fluctuations,” Solomon says.
What does pending mean in real estate? FAQs
If the seller and listing agent agree, your real estate agent may be able to show you a home that has a pending sale. However, not all sellers and listing agents are amenable to this, especially if they have a strong offer they’re confident will close.
If a home is marked pending, an outside buyer cannot overbid the accepted offer because the seller is locked into the purchase agreement. But sellers will sometimes accept back-up offers that they will consider if their first offer fails to close.
You may be allowed to make a back-up offer on a sale pending home if the seller and listing agent are accepting back-ups. But the seller cannot break their current contract, even if your offer is higher than the original. They can only cancel the current deal without penalty if the buyer breaks the terms of their contract or chooses to back out of the sale. If the seller accepts your back-up offer, and it is the only back-up they receive, they will be committed to your sale if the first offer falls through.
Chances are that if a home is listed as pending, the sale will close and you will not be able to buy it. But home sales do fall through, so if there’s a home you think is your dream home, it may be worth asking whether they are taking back-up offers.
In most cases, though, it’s best to simply move on.
“Just realize that your time is likely better spent on searching and viewing available properties and homes that aren’t in ‘sale pending’ mode,” says Gelios.
Some references sourced within this article have not been prepared by Fairway and are distributed for educational purposes only. The information is not guaranteed to be accurate and may not entirely represent the opinions of Fairway.
*Pre-approval is based on a preliminary review of credit information provided to Fairway Independent Mortgage Corporation, which has not been reviewed by underwriting. If you have submitted verifying documentation, you have done so voluntarily. Final loan approval is subject to a full underwriting review of support documentation including, but not limited to, applicants’ creditworthiness, assets, income information, and a satisfactory appraisal.