In June 2021, a revised Counter Offer will be published evidencing two substantive changes.
The first revision pertains to lines 22 and 23, which currently state, “Except as otherwise provided in this Counter Offer, the Parties accept and agree to all terms and conditions of the above Offer / Counter Offer.” These lines have been changed to state “Except as modified by this Counter Offer, all other terms and conditions of the above referenced Offer / Counter Offer(s) shall remain unchanged and deemed accepted.”
Although the new verbiage achieves the same result, it emphasizes the fact that any previous terms and conditions not modified by this Counter Offer shall remain unaffected and considered to be accepted. In the event that agents currently insert verbiage into the Counter Offer stating that all other terms and conditions remain unchanged, that will no longer be warranted.
The second revision pertains to lines 23-24, which currently state, “Until this Counter Offer has been accepted in the manner described above, the Parties understand that the Premises can be sold or leased to someone else or either Party may withdraw the offer to buy, sell, or lease the Premises.” These lines have been changed to state “Until this Counter Offer has been accepted in the manner described above, the Parties understand that the Party originating this Counter Offer may withdraw the offer to buy, sell, or lease the Premises.”
The reason for this change is to help ensure that a Counter Offer not yet accepted is revoked before a party originating the form enters into a contract with a different buyer, seller, tenant, or landlord.
Consider the following example. Seller receives a $250,000 purchase offer from Buyer One. Desiring a higher sales price, Seller conveys a Counter Offer to Buyer One increasing the sales price to $275,000. However, while the Counter Offer to Buyer One is outstanding, Seller receives a $300,000 purchase offer from Buyer Two. By way of the revised June 2021 form, clarification has been added explaining that Seller has the right to withdraw their Counter Offer before it is accepted by Buyer One. Under this scenario, before Seller accepts Buyer Two’s purchase offer, Seller should first withdraw the yet to be accepted Counter Offer previously conveyed to Buyer One. Otherwise, Seller runs the risk of becoming contractually obligated to sell the Premises to both Buyer One and Buyer Two.
The revised Counter Offer will be available on all Arizona REALTORS® forms platforms for use by members on or about June 1, 2021.Counter_Offer-June-2021-Final