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…and I Want a Pony

by Lerner, Hank on

As a kid, when I made one of those “I WANT!” demands that kids tend to make, my parents’ response was “It’s good to want things, it builds character.” My kids get a slightly different version, “That’s nice… and I want a pony.”* (*See author’s note.)

Some recent PAR Legal Hotline trends have really reminded me of those phrases a lot. It seems that many buyers, sellers, brokers and agents seem to believe that merely asking (or demanding) for something to happen just magically speaks it into existence and they are entitled to get whatever they want.

But they’re usually not. A transaction is a negotiation, not a series of demands, and sometimes the other side just has to say, “That’s nice… and I want a pony.”

Let’s dive right in with a few examples.

Deadlines

“I extended the date for <blank>, but the sellers never actually signed an addendum. How do we make them honor the new date?”

What these callers mean to say is: “We asked to extend the date by sending a Change in Terms Addendum, but I just realized the sellers never actually agreed to it. How do I explain to my client that I didn’t secure the written extension and that it might affect their ability to get the deal done?”

An agent can’t fire off an extension form and assume that the other side will agree. That’s not how negotiation works. After all, if you’re asking for an extension it’s probably for something that helps your client, so the other side doesn’t necessarily have an incentive to agree, at least not without some concession from your client. And they have even less of an incentive if they don’t understand the basis of the request. So maybe instead of a text saying, “sent you a CTA to sign,” maybe try a phone call (or even an email) explaining the request and the rationale. Then be prepared to discuss.

One common scenario involves a buyer sending a Change in Terms Addendum to extend the inspection contingency. The buyer may be thinking “I just need a few more days to put together a written corrective proposal that I’m sure we can both agree on.” But the seller may be thinking “you want to string me out for five more days before you decide if you want to terminate? Yeah…and I want a pony. No way.”

We’re also seeing it a lot recently with sellers who are having trouble with the timing of their own purchases and asking/demanding that buyers extend settlement to accommodate them.

Let’s say you represent a seller buying new construction that’s been delayed by a month. That’s definitely a problem for the seller – no denying it – but is it really true that they have nowhere to go and that they couldn’t possibly close on the originally agreed-upon date?

Probably not.

Sellers in this scenario seem to conveniently forget that their own demand to extend closing simply pushes that exact same problem downstream to the buyer who now has to figure out what to do with their own move and might threaten the sale of their current property. Is it any wonder that a buyer translates the seller’s request as “My side of the transaction is falling apart and I expect you to take the hit so I don’t have to” and responds with “You do, huh? …and I want a pony.”

So what are the alternatives? Perhaps this seller could close on time, but put their things in storage and stay in a hotel or with family or friends. Or they could try to get a short-term lease. Or maybe they could negotiate a post-settlement possession agreement that lets the sellers (or at least some of their stuff) stay in the property until the new home is ready. That’s not to say you shouldn’t ask for an extension if that’s what the client wants, but it’s a good idea to talk through the range of alternative outcomes as well to see what else might work for both parties.

And remember that both sides need to have backup plans in place if there’s no change agreed on, which should not involve calling the hotline on the last day of the original time period and hoping for magic extension words.

Stuff

“My client wants the <blank>, but the other side won’t let them have/keep it!”

Please, please, PLEASE – can we all agree here and now that every agent will Read. The. Form? By which I mean read every word of the fixtures and personal property paragraph to every buyer and seller client in every transaction. Slowly. With feeling. While asking “Is there anything on this list that you don’t want here and anything you want on the list that you don’t see here?” Then make the appropriate strikeouts and additions to the agreement so buyer and seller can negotiate over these items right from the start.

Buyers have no exception for “It was referenced in the MLS,” or “Sellers listed it in the disclosure form” or “We mentioned how much we liked it.” Sellers don’t just get to keep something in retribution for a buyer’s bad behavior, no matter how tempting. What’s written in the contract is what stays and what goes, and if you’re demanding anything different you’re basically demanding a pony. (We have not had a caller whose client has asked for an actual pony in this scenario, but we did have a call where there was a disagreement over koi. Close enough for me.)

Once again, these sorts of requests are often workable if the agents are able to have coherent conversations about their clients’ wants and needs so they can negotiate a decent outcome, but it’s not something to be achieved with assumptions and demands… especially if one or the other (or both) don’t know what’s already in the form.

(*Author’s note: My family owned a pony when I was about 8. We had to get rid of it after it kicked my brother in the chest. I was on Team Pony at the time but …well…we don’t always get what we want.)

Topics

PAR Standard Forms Change in Terms Addendum Form CTA
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