Second Thoughts: Withdrawing a Real Estate Offer

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The short answer:
No, you can't withdraw an offer once it's been delivered.

The long answer:
Maybe, if you're clever.

Try googling this question - you'll probably find "an offer can be revoked at any time before acceptance". 

While technically correct, it doesn't apply to the OREA Agreement of Purchase and Sale (APS).

Why?

The very first clause in the APS is titled "Irrevocability". It states that the offer becomes null and void after a certain time. But more importantly, it says that the offer cannot be revoked (withdrawn) before that. 

Okay, so why are we even talking about this?

Well, some of the google searchers found another contract law rule: "a promise without consideration is unenforceable". 

Okay, what does that mean?

It means that a promise can't be legally binding unless there was something promised in return.

For example, If I promise to give you $100 tomorrow and tomorrow comes and I don't pay, you can't sue me for breach of contract.

But if I promise to give you $100 tomorrow in exchange for your bike and then don't pay, you can sue me. The difference is both sides promised something.

So moving back to the APS, when a buyer submits an offer they're promising irrevocability - but the seller isn't promising anything back.

Therefore, the irrevocability clause lacks consideration. 

However, it's still enforceable. Here's why:

A promise without consideration is legally enforceable if it's signed under seal.

What is signing under seal?

It's an old English legal concept (once involving blood) meaning you intend for your promise to be legally enforceable.

It's a substitution for consideration in contract law.

If you look at page 5 in the APS, you'll notice small black circles with (Seal) written underneath them. Not as dramatic as blood, but these modern-day seals are the reason why you can't withdraw your offer.

To Summarize: 
Real estate offers cannot be withdrawn because they include an irrevocability clause and are signed under seal.

But...

Once you know why you can't do something, you also know how you can do something.

What if you want the ability to withdraw your offer?

One option is to delete the Irrevocability clause. Be careful though, without it, the offer remains open for acceptance indefinitely until you communicate a withdrawal.

The second option is to remove the seal. But don't use scissors.

I recommend crossing out the seal, writing "not under seal", initialing it, and adding a clause in Schedule A stating that the Agreement is not signed under seal.

Overkill? Probably, but better safe than sorry.

Key Takeaway

If you're using a Standard OREA Agreement of Purchase and Sale, the Offer cannot be withdrawn during the irrevocable period.


Written by
Zachary Soccio-Marandola
Real Estate Lawyer

Phone: (647) 797-6881
Email: zachary@socciomarandola.com