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Four Reasons A Short-Sale Offer Failed

Ginny:  In April I offered $165,000 on a short sale that was listed at $150,000. My offer was for all cash, but we just found out the property was sold in June to someone else for $160,000 — $5,000 lower than my offer! My broker said that banks look at the first in line and try to work with that rather than try to get the best offer or even look at all offers. Is that true?

My offer was third in line, and apparently the bank took a lower offer that came in before mine. Is this really the way it happens with short sales, or should I look for a different broker? –Domi A., Los Angeles

Domi:  I can envision several different scenarios that might have legitimately led to this result. First off, the other buyer might have simply gotten into contract first. Once a seller is in contract with a buyer, they can’t simply cancel the contract with that buyer because they get a higher offer. Some banks require that all offers be submitted by the listing agent so they can select the highest and best offer, no matter when it comes in. Others want only the actual “contract” the seller has signed.

With short sales, there is the additional nuance that once the bank is considering one contract, many experienced short-sale listing agents will not submit any additional offers to the bank unless and until they receive an acceptance from the bank — regardless of whether the bank has requested to see additional offers or not.

Many fear that submitting a new offer essentially presses the restart button on an already interminable short-sale application process. And this is especially so in situations where the new, incoming offers are higher than the one being considered — here’s why.

Short sales take a long, long time. And they are very unpredictable — most of the time, there’s no telling how long it will take before the bank will issue an acceptance, or whether the bank will ever accept the short-sale application at all!

For this reason, buyer’s brokers and listing agents alike understand the reality that most buyers who make offers on short sales continue to look around for other properties, even if their offer was the one accepted by the seller. As a result, oftentimes short-sale buyers make an offer but fail to hang in the transaction for the duration.

So, here’s what happens in a short-sale listing agent’s head. They get an offer for $160,000 that is submitted to the bank for consideration. Then, they receive an offer from you, for $5,000 more. Some listing agents — as backwards as it sounds — would prefer to get the bank to approve the lower sale price, because the approval of your higher offer price ties their hands from ever accepting other offers at a lower sale price than yours in the (quite likely) event that you walk away before the deal can be done.

If you walk away, and the bank has already seen or approved your high price, the listing agent may never again be able to find another buyer to pay that much. And the bank may never accept less than your offer price, once they’ve seen and/or approved it.

Other things could also be at play here that would make your offer less desirable than the prevailing offer. You offered $5,000 more, and were offering cash, but the other offer might also have been all cash — especially at that price point and in that area. Did your offer include a proof of funds — a bank or other account statement documenting that you actually have the cash in hand to do the deal? If it didn’t, and the other offer did, that could cause a seller to select the other offer over yours.

Did your offer contain any contingencies, like appraisal or inspection? If it did, and the other offer didn’t, that could also push the other offer into priority over yours.

Did the listing broker or agent also represent the other buyer? Often, the total sales commissions paid out on the seller’s side go down — and the total commission earned by the listing broker goes up — when the listing agent represents both buyer and seller.

This arrangement — where a seller agrees to pay a 5 percent commission split 50/50 between two agents or 4 percent commission if the listing agent also represents the buyer (the specific numbers are hypothetical) — is called a dual/variable commission structure, and can also result in preferential treatment to a lower offer because the costs are lower to the seller on the transaction that included dual representation.

There’s no way to know for certain — other than asking the listing agent, who may or may not elaborate — exactly why the lower offer was preferred over your higher, cash offer. But I would encourage you not to shoot the messenger!

I don’t know if you’ve heard or read, but short sales are notoriously difficult to buy. Google it, and don’t fire your agent over something that’s totally out of their control. Unless, that is, you have an ongoing trust crisis — even if it’s unwarranted, that’s a good enough reason to get referrals and do whatever it takes to find an agent you do trust.

The homebuying process is difficult enough — for both you and your agent — without you constantly questioning whether your agent’s on the up and up and threatening to ditch her when things don’t go your way.

If you’re trying to buy a short sale or REO, the one thing I can guarantee you is that something — or many things — will not go your way. C’est la vie on today’s real estate market (and that’s not your agent’s fault).