Benefits of an Escalation Clause for Real Estate Sellers

Have you ever heard of an escalation clause in a real estate contract? An escalation clause, or “escalator,” is a section in a real estate contract that states that a prospective buyer is willing to raise their offer on a home should the seller receive another offer that is higher. This can be beneficial for both the seller and the buyer.

SELLERS: If you’re selling your home, an offer with an escalation clause gives gives you some protection against losing out on your original purchase price even if the market changes during the transaction of the deal.

BUYERS: And if you’re looking to buy a home, an escalation clause may help you win the bidding war against other buyers. In a competitive real estate market, having an escalator in your offer can give you an advantage over others who don’t.

george nicola

By George Nicola (Expert Stager)

Table of Contents

But before you add an escalator clause to your contract, there are some things you need to know.

Escalation clauses can be used in real estate to increase the offer price if another buyer makes a higher bid.

Read on to learn more about how they work and what to consider before including one in your offer for a home.

What is an escalation clause in a real estate contract?

An  “escalator”, also known as an escalator clause, is a vital part of the real estate contract.
It expresses the buyer’s willingness to raise their offer price in order to secure the desired property.
The clause is triggered by another prospective buyer submitting an even higher bid.

This clause helps give buyers an advantage and eliminates potentially lost opportunities from passing up good deals because of low offers.

It is a protection for buyers and should be considered by any homebuyer who does not want to risk missing out on their dream home due to someone else offering more for it.

If you only make one offer, you risk losing the property to another buyer who submitted a higher offer, that’s why it’s important to consider including an escalation clause.

The escalation amount to be included in the original offer can be decided with the help of a real estate agent. 

Why would a prospective buyer want to use an escalation clause in their offer on a home?

Watch Jeb Smith’s video explanation on the topic

When submitting an offer for a home as a potential buyer, almost anything can happen in the competitive market of real estate.

A prospective buyer may want to make sure that their offer is taken seriously by including an escalation clause in the contract that they have prepared with their real estate attorney.

This clause affirms that if the seller receives a higher bid, the buyer is willing and able to raise theirs in order to ensure they are strongly considered.

The escalator doesn’t guarantee that the offer will be accepted, but it does increase buyer’s chances in a market where multiple offers are received.

It’s a safeguard to protect their interests should competing offers be made on the same property.

Having this resolution set ahead of time helps to create a sense of security for both parties and closes out any uncertainty surrounding the negotiations.

A buyer’s offer with an escalation clause is best for the sellers since including escalation clause in your purchase means that the offer is serious. So writing an escalation clause in a real estate offer may increase your chances of getting your dream house. 

How does an escalation clause work in practice?

An escalator is a useful tool for buyers in the real estate market. In real estate transactions, the use of escalation clauses has become common as it allows buyers to increase their bid without having to actively participate in a bidding war.

Knowing what an escalation clause is and how it works is essential for anyone looking to make a successful offer on a property.

The escalator in your purchase offer automatically increases your bid, giving you a better chance of securing the property in a competitive market.

The clause puts a limit on how much the prospective buyer is willing to increase their offer by and guarantees that their offer will be the highest bid.

This helps reduce the stress and frustration of buyers who may not have the same financial resources as other competitors, as well as uncertainty about when or even if to raise their offer price.

Negotiations over a property’s sale price can be streamlined because buyers are able to express their maximum bid from the very beginning. If you’re hoping to win a bidding war in the real estate market, adding an escalation clause to your offer can give you an edge over the other best offers. 

Benefits of escalation clause in real estate

In a real estate transaction, an offer containing an escalation clause might actually benefit both the buyer and the seller. How a clause for maximum purchase price can benefit the seller?

Resulting in a higher final offer price for the seller, an escalation clause automatically increases the agreed-upon purchase price in the event of market fluctuations.

  1. Market Protection: The escalation clause ensures that the seller obtains the property’s current market value, even if the market fluctuates during the transaction.
  2. Competitive edge: A condition that allows interested buyers to make a competitive offer even in a rising market can encourage competition among bidders. This can result in many bids and a higher selling price for the vendor.
  3. Fast sale: An offer containing an escalation clause helps expedite the negotiation and sales process because the buyer and seller can agree in advance on the parameters of the purchase price, similar to a price cap.

Overall, an offer with an escalation clause offers the seller greater protection and potential benefits. Knowing in advance that someone already has final purchase price in mind shows they are serious in their intention.

Reasons for a Seller to Reject an Escalator clause offer

A seller is not required to accept an offer that includes an escalation clause and there may be several reasons why one might choose not to do so. Here are a few possibilities:

  1. Complexity: An escalation clause can add complexity to the transaction, making it more difficult for the seller to understand and evaluate the offer, especially if their real estate agent it’s not on par with this method.
  2. Uncertainty: An escalation clause can create uncertainty for the seller, as the final sales price is subject to change based on the terms of the escalation clause. This can make it more difficult for the seller to plan and budget for the future.
  3. Lack of Control: An escalation clause can take away control from the seller, as the final sales price is based on an outside benchmark such as the cost of living index or the price of similar homes in the area.
  4. Preference for a Firm Offer: Some sellers may prefer a firm, non-escalating offer, as it provides a clear and definite sales price from the beginning of the transaction.

Ultimately, the decision to accept or reject an offer with an escalation clause is up to the individual seller and will depend on their specific needs, preferences, and goals in the transaction.

Potential drawbacks to including an escalator in your offer on a property?

An escalator can be beneficial in a competitive market when available houses are limited, as it gives buyers an edge over potential rivals by ensuring the strength of their offer in hot real estate markets.

Although escalation clauses can help your offer stand, there are some drawbacks to consider before including it in an offer.

Primarily, the process can become costly because of the overbid amount that is required—which may overshadow the initial budgeted amount—and which can be less appealing to sellers if multiple similarly competitive offers have been submitted.

Furthermore, if other interested parties have not included an escalator in their offer on the home, your bid may become too high for what others might be willing to pay and thus cancel out your chances of receiving the property.

Real estate escalation clause example

An escalator clause is a provision in a real estate contract that automatically increases the agreed-upon purchase price if a specified benchmark, such as the cost of living index or the price of similar homes in the area, increases.

By adding an escalation clause to an offer, the buyer can be protected from paying more than the market value when giving an offer on a house, and the seller is also protected from receiving less than the current market value.

With the right guide to escalation clauses, you can ensure that you have a better chance of securing the property with the highest offer right away, without having to constantly monitor the real estate industry for new offers.

Sellers receive more than one offer in a competitive market for their properties.

But they might not be up to accept the offers without an escalator, since including an escalation clause shows them that the potential buyer is serious about the offer submitted.

The escalation clause is triggered when the seller receives a higher offer from another prospective buyer or in situations such as increase in cost of living occurs.

For example, if the agreed-upon purchase price for a home is $500,000 and the clause specifies a 2% increase in the event of a cost of living increase, the purchase price would increase by the escalation clause automatically to a final offer of $510,000 if the cost of living were to increase by 2%.

As we see from this example, escalation clauses can be beneficial in real estate terms for both the seller and the buyer since it helps to ensure that both parties are fairly compensated in the transaction. 

What to reply if you have escalation clause to "final and best offers" from agent

Here is a suggested response if you have an escalation clause and receive a request for “final and best” offers from the seller’s agent:

“Thank you for contacting me regarding submitting a final and best offer. As you know, my current offer contains an escalation clause that allows my offer price to automatically increase up to [maximum escalation price] in the event that a competing offer exceeds my current purchase price.

I believe this escalation clause already represents my best offer, as it demonstrates I’m willing to raise my price if needed to win the bid. The escalator protects me from overbidding while giving the seller confidence I am serious about purchasing the property.

If the seller is not satisfied with the terms of my current escalator offer, I am willing to discuss adjusting the escalation amount or terms within my maximum budget. Please let me know if there is any flexibility in the asking price or if the seller has any specific concerns I could address to hopefully move forward with a mutually agreeable deal using the escalation clause in my offer.”

The key points are reaffirming that your escalator clause represents your best and highest offer according to your maximum budget, but showing openness to discuss fine-tuning the details if needed to get seller acceptance and close the deal. This maintains your negotiating position while demonstrating reasonableness.

How to write escalation clause?

The key is to provide clear escalation parameters also escalator clause and terms to protect your interests as a buyer while giving the seller a chance to get a higher purchase price.

Here are some tips for writing an effective escalation clause wowrding for a real estate purchase offer:

  • State clearly that the offer is subject to an escalation clause and outline the specific conditions that must be met.
  • Include the listed purchase price that you are starting with in your offer.
  • Specify the escalation amount – how much you are willing to increase your offer by if triggered (e.g. $1,000 increment increase).
  • Set the ceiling price that your offer will escalate up to as the maximum you are willing to pay.
  • Define the specific scenario that triggers the escalation, such as another buyer’s higher offer. Require verifiable documentation.
  • Include a time frame for how long the escalation clause is active (e.g. 24-48 hours after presentation of proof of higher offer). Avoid open-ended escalation.
  • Allow sufficient time for you to be notified if escalation is triggered and submit revised offer.
  • State that all other terms and conditions of the original offer remain unchanged after escalation.
  • Have your agent present the escalation clause to the seller’s agent to ensure proper understanding and execution.
  • Consult your agent and real estate attorney to ensure the clause is allowed in your state and structured properly.

Digital Tools in Escalation Clause Negotiations

As the real estate market continues to evolve, digital tools and technologies have become increasingly important in facilitating efficient and transparent negotiations, particularly when it comes to escalation clauses.

With the rise of remote work and virtual property viewings, buyers and sellers now rely on digital platforms and communication channels to navigate the complexities of real estate transactions.

In this new landscape, real estate agents play a crucial role in helping their clients understand and effectively use escalation clauses by leveraging digital tools for seamless collaboration and negotiation.

For instance, electronic signature platforms and secure document sharing services have made it possible for buyers and sellers to quickly review, sign, and share contracts containing escalation clauses.

This not only speeds up the negotiation process but also ensures that all parties have access to the most up-to-date information and can make informed decisions.

Additionally, real-time messaging apps and video conferencing tools enable real estate agents to efficiently communicate with their clients, providing instant updates on competing offers and helping them determine the appropriate escalation amount.

In this digital era, it is essential for home buyers to work with real estate agents who are well-versed in utilizing these digital tools to navigate the complexities of escalation clauses and other aspects of real estate transactions.

By embracing the power of technology and staying informed about the latest market trends, home buyers can increase their chances of securing their dream property in today’s competitive real estate market.

Escalation Offers & Bona Fide Offers in Real Estate

In real estate deals, both an escalation offer and a bona fide offer can be used to ensure that a buyer is adequately compensated for the worth of a particular property. Here is a brief explanation of the relationship between the two.

An escalation offer is a form of real estate offer that automatically increases the agreed-upon purchase price based on a defined benchmark that can be but not limited to the cost of living index, multiple offers and higher bids from competing buyer or the price of comparable residences in the area.

A bona fide offer, on the other hand, is a serious and credible way to acquire a property made by a buyer.

Escalation offers and bona fide offers are utilized to safeguard both the buyer and seller from paying more than the market worth for a property.

By combining the two, a buyer is able to make a genuine and legitimate offer to acquire a home, with the extra protection of a price increase in the event of market fluctuations.

This ensures that all parties are compensated properly in a transaction.

Common Misconceptions About Escalation Clauses in Real Estate

Despite the growing popularity of escalation clauses in competitive real estate markets, there are still several misconceptions that home buyers and sellers may have about their use and effectiveness.

By addressing these common misunderstandings, we hope to provide a clearer understanding of escalation clauses and their role in real estate transactions.

1. Misconception: Escalation clauses always guarantee a higher sales price.

Reality: While escalation clauses can lead to higher offers, they are only triggered when a competing offer surpasses the initial bid. If no other offers exceed the initial offer, the escalation clause will not come into effect, and the purchase price remains unchanged.

2. Misconception: Using an escalation clause reveals the buyer’s maximum budget.

Reality: An escalation clause only reveals the buyer’s willingness to increase their offer up to a certain limit. It does not necessarily disclose the maximum amount a buyer is willing to spend on a property. Buyers can be strategic with their escalation limits while working closely with their real estate agents to ensure their budget remains confidential.

3. Misconception: Escalation clauses are only beneficial for the buyer.

Reality: Escalation clauses can be advantageous for both buyers and sellers. Buyers benefit by increasing their chances of securing a property in a competitive market, while sellers can potentially receive higher offers due to the competition among buyers.

4. Misconception: All sellers are obligated to accept offers with escalation clauses.

Reality: Sellers have the right to accept or reject any offer, including those with escalation clauses. They may choose not to accept an offer with an escalation clause for assorted reasons, such as complexity, uncertainty, or a preference for a firm, non-escalating offer.

By addressing these common misconceptions, home buyers and sellers can better understand the role of escalation clauses in real estate transactions and make more informed decisions when navigating the competitive real estate market.

Actionable Tips for Effectively Using Escalation Clauses

By addressing these common misconceptions, home buyers and sellers can better understand the role of escalation clauses in real estate transactions and make more informed decisions when navigating the competitive real estate market.

1. Collaborate with a knowledgeable real estate agent: A seasoned real estate agent can provide valuable insights on the appropriate escalation amounts based on local market trends, recent comparable sales, and the property’s unique features, making sure all disclaimers are in place and accuratelly written..

2. Set a realistic escalation cap: Determine your maximum budget and establish a reasonable escalation limit with which you are comfortable. This will help prevent overextending your finances and ensure you stay within your means.

3. Consider contingencies: When including an escalation clause, be mindful of contingencies such as home inspections, appraisal requirements, and mortgage approvals.

4. Stay informed about the local market: Keep an eye on local market trends and fluctuations, as these factors can significantly impact the effectiveness of escalation clauses in your real estate transactions.

5. Explore alternative strategies: In addition to escalation clauses, consider other tactics for standing out in a competitive market, such as offering a flexible closing date or providing a personalized letter to the seller.

By following these actionable tips and staying informed about the latest trends in the real estate market, you can maximize your chances of success when using escalation clauses and navigate the home buying process with confidence.

Alternatives to Escalation Clauses in Real Estate Transactions

While escalation clauses can be a powerful tool for securing your dream home in a competitive market, it is essential to consider other strategies that can also help you stand out among multiple offers.

By understanding the different alternatives to escalation clauses, you can make more informed decisions and increase your chances of success in your real estate transactions.

1. All-cash offer: Offering to purchase a property with cash can be a significant advantage in a competitive market. Sellers often prefer cash offers due to the reduced risk of financing falling through and the potential for a faster closing. 

2. Flexible closing date: Accommodating the seller’s preferred closing timeline can make your offer more appealing, especially if the seller requires extra time to find a new home or finalize their purchase.

3. Pre-approval letter: Submitting a mortgage pre-approval letter with your offer demonstrates to the seller that you are interested in the financial capability to purchase the property.

4. Personalized offer letter: Including a heartfelt, personalized note to the seller can create an emotional connection and help your offer stand out, among others.

Share your story, reasons for choosing the property, and how you envision your future in the home.

5. Limited contingencies: Reducing the number of contingencies in your offer can make it more attractive to sellers by simplifying the transaction and reducing potential roadblocks. Aim at a balance between a competitive bid and protecting your interests.

Conclusion

An escalator, is a section or verbiage in a real estate contract that states that a prospective buyer is willing to raise their offer on a home should the seller receive a higher competing offer.

The inclusion of the clause shows the seller that you are serious about buying the property and are willing to make a competitive offer.

An escalator clause can provide peace of mind for both the buyer and the seller in a market where multiple offers are being submitted. The buyer can increase their bid if necessary, and the seller can rest assured they will receive the highest offer.

A potential drawback of including an escalation clause in your offer is that the sellers may be less likely to accept your initial offer if they know you are willing to pay more.

If you are serious about buying a particular home, and there is significant competition for that home, then you may want to consider adding an escalator to your offer.

Can seller deny selling to the bid winner?

If it is a regular residential real estate sale, and not an auction, then generally the seller cannot arbitrarily reject an offer from a buyer, even if it was the highest offer received.

Some key points on why a seller usually cannot deny selling to the highest bidder/offer in a normal real estate transaction:

  • Accepting an offer forms a legally binding purchase agreement. Sellers cannot later change their mind without consent from the buyer or documented justification.
  • Sellers are obligated to negotiate offers “in good faith” under real estate regulations. Rejecting the highest bid without cause could violate this.
  • Unless stipulated upfront, sellers reserve limited rights to reject buyers after accepting an offer, only for reasons like financing falling through.
  • If the buyer’s offer meets all requirements, is the highest, and the buyer can close, the seller is generally contractually bound to finalize the sale.
  • The buyer could pursue legal action against the seller for not fulfilling a valid purchase agreement if the seller arbitrarily refuses to sell.

A binding purchase contract is formed which the seller must honor.

Which offer would be the most appealing to a seller?

When reviewing multiple offers as a seller, the most appealing offer is generally the one that presents the least risk and highest overall value.

Here are some key factors that would make an offer most appealing to most sellers:

  • Highest Purchase Price – All else being equal, a seller will favor the offer with the highest purchase price that maximizes their profits.
  • Strongest Down Payment – A higher down payment signals the buyer has the finances in order and the offer is less contingent on securing a mortgage. Typically 20% or more is best.
  • Fewest Contingencies – Offers with the fewest contingencies have less risk of falling through and are more likely to close. Quick closing timeframe also appealing.
  • Pre-Approval Letter – An offer that comes with a pre-approval letter shows the buyer is qualified and able to obtain financing more smoothly.
  • Non-FHA Loan – Conventional loans favored over FHA/VA loans which have stricter appraisal guidelines the seller must meet.
  • Flexible Closing Date – A seller would prefer some flexibility on closing date in case delays occur versus a rigid timeline.
  • As-Is Offer – Waiving inspection objections reduces seller obligations and chances of re-negotiation. Cash offers also remove financing risks.
  • Higher Earnest Money Deposit – More earnest money at risk if the buyer defaults shows greater commitment to purchase.

The overall strongest offer for a seller is one that maximizes price while minimizing risks of the deal falling apart before closing.

Can you outbid an accepted offer with escalation clause?

Yes, it is possible to outbid an accepted offer that contains an escalation clause. Here are some key points on how to approach outbidding an escalation clause offer:

  1. Review the terms of the escalation clause. This includes understanding the starting bid price, the capped maximum escalation amount, and what specific conditions trigger the escalation.
  2. Make an offer that exceeds the current purchase price by enough of a margin to be meaningful. You need to ensure your new offer actually triggers the escalation clause in the accepted offer, forcing the buyer to raise their price.
  3. Consider going above the maximum escalation amount listed. This essentially causes the accepted buyer to hit their cap, allowing your higher offer to take precedence. But only bid over the cap if it fits your budget.
  4. Move quickly before the initial buyer has time to further increase their offer. Present your new escalated offer as soon as possible once you have clear details on the terms of the existing escalator clause.
  5. Expect competition. Assume the initial buyer will likely attempt to escalate again up to their maximum amount once you trigger their clause. Be prepared for a potential bidding war.

The key is understanding exactly what dollar amounts will force the hand of the accepted buyer using the escalation clause and promptly presenting an offer that exceeds the cap on their escalation. This should make your new offer the highest bid for the seller to consider accepting.

What is final walk through clause?

A final walk through clause is a provision that is often included in real estate purchase and sale agreements. Here are some key points about final walk through clauses:

  • It allows the buyer to do one final inspection of the property shortly before closing. Usually within 1-2 days of closing.
  • The purpose is to confirm the property condition matches what was agreed to in the purchase contract and all seller responsibilities have been completed.
  • Common things checked on a final walk through include working appliances, completed repairs, property condition, fixtures in place.
  • If deficiencies are found, the buyer can request the seller address them before closing or credits given at closing.
  • If major issues arise, the buyer may have the ability to delay or cancel closing until they are resolved, depending on contract terms.
  • Sellers are usually required to provide utility service to the property during the final walk through.
  • Failure to remedy major problems found may be considered a default by the seller. But minor issues would still require closing.
  • The right to a final walk through gives the buyer peace of mind and a chance to document issues before ownership transfers.

A final walk through clause gives the buyer an opportunity to inspect the property shortly before closing and confirm it is in acceptable condition as agreed upon in the purchase contract. This protects both parties in the transaction.