What’s an escape clause? Final walk-through denied


We have an offer on our home that’s conditional upon financing for 10 days. Can we accept another offer in the meantime?

Dear David,

We have an offer on our home that’s conditional upon financing for 10 days. Can we accept another offer in the meantime? – RESTLESS

DEAR RESTLESS: Typically, a financing clause may not leave an opportunity for you to entertain other offers during the period a buyer is given to set up their financing.

In order to consider a second offer, your first one would have to contain a “bump” or “escape” clause, which requires the buyer to firm up the sale under specific circumstances.

An escape clause generally accompanies a “Sale of Buyer’s Property” condition and allows the seller to accept one conditional offer, while still leaving the door open for others. If the seller receives a “back-up” offer, the escape clause is activated for a specific 24 to 72-hour time period. Within that window, the buyer must either waive their conditions and firm up the sale — or walk away from the deal and free the seller to accept the second offer.  

Currently, you could accept a back-up offer that is conditional on your being released from your original Agreement of Purchase & Sale. This means that the second offer would only be valid if the first one happens to dissolve.

PRO TIP: A conditional offer is a promise to buy your home, not a firm commitment. If you wish to entertain additional offers with a conditional offer in place, your agent would have had to include an escape clause in the original agreement — although this would be unusual in an offer only conditional upon financing.

Dear David,

When my parents came to town, we used our last walk-through to show them the house we just bought. Now the sellers won’t let us do a final walk-through, which makes me nervous. – IN A QUANDARY

DEAR QUANDARY: The final walk-though is an important step in ensuring you get what you paid for. I have clients who try to brush it off, but in my opinion, it is standard good business practice.

The challenge seems to be that there weren’t enough walk-thoughs in your contract to accommodate that extra showing. Review the purchase agreement with your agent. It may stipulate that you are entitled to a final walk-though within 24 hours of closing; if that is the case, an argument could be made that the walk through with your parents was an extra, by mutual consent of both parties.

If your contract was written to stipulate only a specific number of walk-thoughs, you may have a challenge from a legal standpoint. That said, it would be unusual for a seller or their agent to refuse a final walk-through, as it would obviously raise some suspicions.

PRO TIP: Have your agent appeal to the selling agent’s sense of good business practice, and call your lawyer to give them a heads up. No one wants a problem after closing. Maybe the other agent was having a bad day, and in retrospect can see the value of allowing a final walk-through to ensure there are no lingering problems. Ask David #Advice