Property listings go through several statuses in the multiple listing service and online marketplaces. Besides active property listings, you may come across “contingent” and “pending” listings. You’ll need to understand the difference between contingent and pending to see if you still have a chance to make an offer or if you should look elsewhere.
— What does contingent mean?
— Common contingencies in real estate.
— What does pending mean?
— How often do contingent and pending offers fall through?
— Can you make an offer on a contingent or pending home?
— Can a seller sell to a different buyer when their property is listed as contingent or pending?
What Does Contingent Mean?
A contingent property is one where an offer has been accepted and the home is under contract, but before the home can be sold, certain conditions must be met. These conditions are called contingencies.
Contingencies are clauses listed in the sales contract which must be negotiated and agreed upon by the buyer and the seller to be binding. These clauses list criteria that must be fulfilled before the sale can continue.
“Once they have an accepted offer with a buyer, then that’s entered under contract,” explains Chloe de Verrier, a Realtor serving Los Angeles and the surrounding areas.
“Under contract is typically the first couple of weeks where the buyer is doing all of their due diligence. Once the buyer has removed all their contingencies, meaning that they are 100% going to close on the deal, then that’s when a home will go into what’s considered pending,” she adds.
Common Contingencies in Real Estate
Basic home sale contingencies are typically related to the inspection, appraisal and loan, says de Verrier.
“These are put into your contract and are part of the transaction,” she adds. “Oftentimes, you may have different disclosures which will be presented to the buyer during the inspection time, which they have to review. But those are going to be the main three.”
Here are some common contingencies you may find on a home sale contract:
— Inspection contingency: This allows the buyer to have the home inspected within a certain time frame. If problems arise during the inspection, the buyer can negotiate repairs or cancel the contract.
— Appraisal contingency: If the home’s value is estimated to be less than the offer, then the buyer can walk away from the deal.
— Financing contingency: This gives the buyer a certain amount of time to secure financing. If the buyer cannot get a mortgage, then the contract can be terminated.
— Title contingency: The offer is contingent upon the title of the home being clear of any liens or discrepancies.
— Home sale contingency: The offer is contingent upon the successful sale and settlement of the buyer’s home.
What Does Pending Mean?
When a property is listed as pending, it means that an offer has been accepted, all contingencies have been either met or waived and the home listing is no longer active on the market. However, the deal hasn’t been closed yet and a property with a pending status can still return to the market.
Once a home is pending, sellers cannot legally back out of the deal. However, the buyer can still cancel the contract. “Even if a buyer came to (the seller) two days after selecting an offer and said, ‘I’ll offer you 500 grand more than what you have now,’ the seller legally can’t take that deal,” de Verrier explains.
She also says that “if all contingencies are removed, a buyer cannot cancel the contract and keep their earnest money deposit, which is 3% of the purchase price.”
How Often Do Contingent and Pending Offers Fall Through?
It’s difficult to say how many contingent and pending offers fall through each year, but the National Association of Realtors found that in Jan. 2022, 7% of purchase agreements were terminated before closing. Among contracts that were terminated, 25% were because of inspection issues and 21% were due to financing problems.
“It’s happening more in this current market than it did pre-COVID,” states de Verrier. “And the reason for that, especially when interest rates were hitting historical lows last year, was that lot of lenders and banks were issuing preapproval letters without doing upfront due diligence.”
This created an issue with buyers who entered into contracts. Lenders weren’t able to approve the loan after completing due diligence, causing the home sale to fall through.
Can You Make an Offer on a Contingent or Pending Home?
Once a home is under contract, the seller is locked in with that buyer but may still accept backup offers. “In the case that buyer No. 1 cancels or doesn’t perform, then the seller can go to buyer No. 2 or to buyer No. 3 and put that opportunity on the table,” says de Verrier.
Can a Seller Sell to a Different Buyer When Their Property Is Listed as Contingent or Pending?
A seller can only sell to a different buyer if the current buyer fails to perform or does not respond to a notice to perform.
“If a buyer is not following the details of their contract, then a seller can issue a notice to perform, which essentially is putting a fire under the buyer to say ‘Hey, you have 48 hours to do what you’re supposed to do.’ And if they don’t, then the seller can cancel and go look for another buyer,” de Verrier says.
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