A KICK OUT CLAUSE CONTRACT CAN PROTECT HOME SELLERS

A 'KICK-OUT CLAUSE' CAN PROTECT HOME SELLERS

Question: We were about to sign a contract to sell our house to a very nice couple, when they advised us they cannot afford to buy our house unless they sell their house first. We would like to sell to this couple, but are reluctant to take our house off the market for an indefinite period while the buyers try to sell their house. How do you resolve this dilemma?

 

 

Answer: There is a concept in real estate called "the kick-out clause," which may solve your concerns. No one likes to sign contracts which are contingent on the purchasers' ability to sell their own house. Unfortunately, not everyone can afford to buy a new home until they sell their current property. And even if you can afford to carry the financial burden of two houses, many prospective home buyers still prefer to include a contingency in their contract to the effect that they do not have to purchase the new property until and unless their current home is not just under contract but actually is sold.

Generally speaking, when buyers present sellers an offer to purchase, they can include a contingency for the sale of their house. This is known as a "contingent contract." In simple English, this means that if the specified event does not occur -- in this case the buyers do not sell their house -- then the contract to purchase the new property becomes null and void and the purchasers are entitled to a full refund of any earnest money deposit.

Needless to say, as you have suggested, sellers do not want to take their house off the market for an indefinite period.

Accordingly, a compromise has been developed, which is known as a "kick-out" clause. Under this arrangement, the contract provides that while the sellers are willing to accept a contingency contract, the sellers will continue to market the house. If another qualified buyer is found, the seller will give the current purchaser a certain amount of time -- usually 72 hours -- in which to remove the contingency (i.e., keep the contract alive) or exercise the contingency and decide not to purchase the new property.

This kick-out clause has to be carefully drafted. If the potential purchasers are confronted with the 72 hour kick-out period, and decide to delete (remove) the sale contingency, they may still be able to get out from under the original contract if they cannot get financing. Keep in mind that most standard sales contracts also contain another contingency on the ability of the purchaser to obtain the necessary financing.

This creates a dilemma for everyone. If the purchasers remove the sale contingency but still have the financing contingency in the contract, it is likely that a lender will not give a binding loan commitment to the purchasers unless they sell their house first. Thus, the mere removal of the sale contingency does not meet the seller's needs. The purchaser can still find an excuse to back out of the contract, based on another contingency in the contract.

Sellers should seek advisement from their Realtor

Search A KICK OUT CLAUSE CONTRACT CAN PROTECT HOME SELLERS Homes for Sale

New Listings

Featured picture for the property 6056685
$345,000
Johns Creek, GA
3
beds
3
baths
Listing Provided Courtesy Of KELLER WILLIAMS NORTH ATLANTA ATL
Featured picture for the property 6060080
$316,000
Suwanee, GA
3
beds
4
baths
Listing Provided Courtesy Of KM HOMES REALTY ATL
Featured picture for the property 6060076
$210,000
Alpharetta, GA
2
beds
2
baths
Listing Provided Courtesy Of DUFFY REALTY OF ATLANTA ATL
Featured picture for the property 6059153
$445,900
Duluth, GA
4
beds
4
baths
Listing Provided Courtesy Of KELLER WILLIAMS REALTY ATLANTA PARTNERS ATL
Featured picture for the property 6060041
$428,300
Johns Creek, GA
3
beds
4
baths
Listing Provided Courtesy Of PAMPERED PROPERTIES ONLINE LLC ATL
ATL Listings identified with the FMLS IDX logo come from FMLS and are held by brokerage firms other than the owner of this website. The listing brokerage is identified in any listing details. Information is deemed reliable but is not guaranteed. If you believe any FMLS listing contains material that infringes your copyrighted work please click here to review our DMCA policy and learn how to submit a takedown request. © 2018 First Multiple Listing Service, Inc.
Last updated on Aug 18, 2018 3:01:pm.