The housing market is a cutthroat sector and you will often hear stories about buyers being “gazumped” by those making higher offers. There does seem to be a little bit of confusion and misinformation regarding the buying process and what each stage actually means. This then prompts the question; can you still make your own offer on a home which is under offer?
Housing market jargon
While there are various descriptions which relate to different stages of the selling process, there is some confusion surrounding the way these are used by some estate agents. Some of the terms you will see include:-
This is a very vague term which can on occasion be used by estate agents to prompt interest in a property. Technically speaking even if an offer was rejected for a property then it could in theory still be described as “under offer”. However, from the seller’s point of view they would probably prefer not to have the “under offer” description added to their home because it gives the impression a deal has been done – or is being discussed.
Sold subject to contract
The term sold subject to contract (sometimes referred to as sold STC or SSTC) means that an offer has been accepted for a property but contracts have not yet been exchanged. Again, when looking at the seller’s point of view and the buyer’s point of view they will have different agendas. Until contracts have been exchanged most sellers would prefer the “sold subject to contract” description not to be added to their property sale page/sale sign. Flipping the coin, from a buyer’s point of view they would prefer this to be added as soon as possible to give the impression the sale is done and dusted – and to ward off additional interest.
Once contracts have been exchanged between representatives of the buyer/seller it is still technically possible for other third parties to make an offer (although probably unlikely). There will be a period between the exchange of contracts and transfer of funds but this tends to be a very short window of opportunity. In reality, any counteroffer would need to be significantly higher than the previously agreed offer to make it worthwhile with regards to legal fees, etc. There may also be penalty clauses which oblige those pulling out of a deal to pay compensation to the other party. However, you will find that some people are determined to buy specific properties and will on occasion make offers which simply cannot be refused.
Back in the 1980s gazumping was a regular occurrence more in England than Scotland – where contracts tend to be exchanged more quickly. The 1980s was the housing boom era of the UK and many investors and first-time buyers were clambering over each other to buy properties. Promising to pay over the odds this placed sellers in a very strong position and many took advantage. Legally, although very different from a moral point of view, until contracts have been exchanged and funds received the buyer can consider other offers.
The role of estate agents
When you strip away the jargon and get down to the basics, the role of an estate agent is simply to obtain the best price for their client and ensure that contracts are exchanged/funds transferred as soon as possible. Therefore, even if a property has been described as sold subject to contract they are still legally obliged to pass on any further interest in the property. This is very clear and for one simple reason, if they were to turn down additional interest in a property and the original offer was to fall through, this could leave the seller in a precarious situation. The estate agent industry does not necessarily have the best reputation in the world, gazumping in the 80s was a prime example, but they do have legal obligations to their clients.
The process of buying a property
There are various well-defined stages of the property purchase process which are as follows:-
• Make an offer
• Offer acceptance
• Legal checks
• Survey, etc
• Securing funds
• Signing of contracts
• Exchange of contracts
• Payment of monies
Right up until the exchange of contracts/receipt of monies it is perfectly acceptable to make a counteroffer for a property. You will probably have heard that gazumping has not been an issue in Scotland and may even be under the impression that this is illegal. This would appear to be a general misconception because gazumping is not illegal in Scotland – although instances of gazumping are far less than in England. This is simply because the gap between the signing of contracts, exchange of contracts and receipt of funds is much shorter in Scotland.
How to make a counteroffer
If you are considering making a counteroffer for a property which is “under offer” then you should contact the estate agent directly and inform them of your interest. Ask them directly if they will pass on your interest to the seller. At this stage it is probably best to give some kind of indicative offer to show that you are serious about the property. There will be occasions where estate agents are reluctant to pass on your interests at which point it may be worth considering a direct approach to the seller.
As time can be of the essence with regards to counteroffers, often prompting buyers to speed up the purchase process, it is not a time to sit on your laurels. In reality, once you express an interest through the estate agent this should be passed on to the seller immediately and any response conveyed back to you hopefully the same day. If you are a cash buyer this could also work in your favour because it would remove the requirement for a mortgage which can sometimes slow down the purchase process.
When looking at a potential property purchases you should always remember that nothing has been sold until contracts have been exchanged. Indeed even after contracts have been exchanged, often including conditions on payment, we have seen occasions where transactions have not been concluded. In reality, if either party was to pull out after the exchange of contracts there would likely be some kind of penalty clause.
We live in a world where cash is king, money talks and while morals and ethics are great in principle they don’t pay the bills. Therefore, there is nothing wrong in making a counteroffer for a property but you will often find that time is of the essence and just a few hundred pounds over the previously agreed price won’t cut it. You would need to make it worth the sellers while or if you were in a position to offer cash this may well tip it in your favour.