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Escalation Clause Upsides and Downsides

By Bill Gassett | June 28, 2023

In real estate, negotiation is a key component of every transaction. Both buyers and sellers strive to secure the best deal possible.

One strategy that has gained popularity in recent years is using an escalation clause in real estate agreements. They are far more common to see in strong seller's markets.

An escalation clause is a contractual provision that allows a buyer to increase their offer price if a competing buyer outbids them.

While this clause can be advantageous in certain situations, it has its fair share of pros and cons. We will explore the escalation clause pros and cons of using them in real estate transactions.

Pros and Cons of an Escalation Clause
What Are The Pros and Cons of an Escalation Clause

Understanding the Real Estate Escalation Clause

A real estate escalation clause is a contractual provision that allows a buyer to offer a base purchase price for a property, with a predetermined increment that automatically adjusts the offer if competing offers exceed the initial bid.

The clause establishes a maximum limit or "cap" beyond which the buyer is no longer willing to escalate their offer. The specifics of the escalation, such as the increment and the cap, are agreed upon between the buyer and their real estate agent or attorney.

Pros of an Escalation Clause

An escalation clause in a real estate purchase agreement can give buyers several advantages in a competitive market. Here are some advantages:

Competitive Edge

One of the significant advantages of incorporating an escalation clause in a purchase agreement is gaining a competitive edge in a multiple-offer situation. An escalator in your contract can help you win a bidding war.

Multiple buyers may be vying for the same property in a seller's market where demand outpaces supply. An escalation clause can help buyers stand out by automatically increasing their offer price, ensuring they remain ahead of other potential buyers.

It might even be the difference between beating a cash buyer for a house you love.

Convenience

Using an escalation clause can streamline the negotiation process. Rather than engaging in back-and-forth counteroffers, the clause allows the buyer to set a predetermined increment by which they are willing to escalate their offer.

Doing so simplifies the process for both parties and saves time, making it an attractive option for time-sensitive transactions.

Potential Cost Savings

With an escalation clause, buyers can secure a property at a lower price than the maximum they are willing to pay. If the competing offer triggers the escalation, the buyer's offer will only increase by the predetermined increment, providing a chance to secure the property without paying their full maximum offer.

You can get your offer accepted without spending to the budget limit in many circumstances.

Cons of an Escalation Clause

While an escalation clause in a real estate purchase agreement can offer several advantages to buyers, it is essential to consider the potential drawbacks of its use.

Understanding the cons of an escalation clause is crucial for buyers to make informed decisions and evaluate whether this strategy aligns with their needs and circumstances.

We will explore the potential disadvantages of incorporating an escalation clause in real estate transactions, including:

You Give Away a Buyer's Maximum Offer

The most significant downside to an escalation clause is putting out the maximum a buyer is willing to spend for a home. There is no poker involved when it comes to an escalation agreement.

You are telling the seller and their agent upfront what you'll pay. Sometimes when doing so, you will pay more than you need to.

Uncertainty of The Agreement

One of the primary concerns associated with an escalation clause is the uncertainty it introduces into the transaction. As a buyer, you cannot predict your exact price. This lack of certainty can be unsettling for some buyers, especially those with strict budget constraints or prefer a more straightforward negotiation process.

Potential Appraisal Challenges

An escalation clause may result in the final purchase price exceeding the appraised value. In such cases, buyers may need help securing financing since lenders typically base their loan amounts on the appraised value.

If the appraisal falls short, the buyer may need to make up the difference in cash or negotiate with the seller to reduce the purchase price. Appraisal gaps are common with bidding wars and homes selling significantly over the asking price.

Seller's Perception

While an escalation clause can benefit the buyer, sellers may view it skeptically. Some sellers may perceive it as an opportunistic strategy that needs more transparency.

Additionally, sellers may believe that an escalation clause indicates that the buyer is willing to pay more than the property's market value, leading to potential negative perceptions and resistance from the seller's side.

Sometimes the seller's perception is skewed because their seller's agent doesn't understand them. Instead of trying to learn, they instead bash the strategy and try to talk their clients out of accepting them.

The seller suffers because they get bad advice from a lousy real estate agent. As someone with thirty-seven-year experience selling real estate, it is flat-out DUMB for an agent to tell a seller not to accept an escalation clause.

An escalation clause aims to help buyers nail a house in a bidding war - translated, it gets sellers more money in their pockets!

Final Thoughts on Escalation Clauses

Escalation clauses in real estate purchase agreements have their own set of pros and cons. They can offer buyers a competitive advantage in multiple-offer situations, simplify negotiations, and save costs.

However, they also introduce uncertainty, can result in appraisal challenges, and may be viewed skeptically by sellers. Ultimately, the decision to use an escalation clause should be based on carefully evaluating the specific market conditions, the buyer's financial situation, and the seller's preferences.

It is crucial to real estate there are other crucial terms in an offer besides the price. Contingencies, the closing date, and the buyer's financial qualifications are vital to an offer.

It is advisable to consult with a knowledgeable real estate professional or attorney to determine the suitability of an escalation clause in each unique transaction.

Bill Gassett is an authority in the real estate industry with 38 years of experience. Bill is well respected for his informative articles for buyers, sellers, and fellow real estate agents to make sound decisions. His work has been featured on RIS Media, the National Association of Realtors, Inman News, Newsbreak, Credit Sesame, Realty Biz News, and his own authoritative resource, Maximum Real Estate Exposure. He has been on of the top RE/MAX agents in New England over the last two decades.
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