Seller "withdraws" counter offer before written deadline - legal?

[Chris Reeves]

Hey folks,

This situation has not happened to me before so I thought I'd ask to see if anyone else has been through this.

1. On August 16 I received a seller's counter offer on a property. The written deadline for acceptance on the counter offer was August 19 (which I presume means any time up until 11:59 pm).
2. In the early afternoon of Friday, August 19 I received a written "withdrawal" of the counter offer from the seller. The withdrawal noted that I had not accepted the counter offer by 2:30 pm central time, and claimed the seller therefore had the right to withdraw (the original counter offer did not mention a time deadline - only the date of August 19).
3. I e-mailed my real estate agent to ask why the seller had withdrawn the offer. She wrote back that he told her he received a "substantially" higher offer and that the very day he attempted to cancel his counter offer to me 9 hours early, he went into contract with another buyer.

When I received the e-mail containing his written withdrawal of the counter I thought "oh well, that's that" and initially thought I had lost the right to accept his counter offer. I did not realize until today, Monday August 22, when I checked the documents again, that the seller's "withdrawal" of his offer to sell his property was not actually a valid withdrawal - that in fact I had all day August 19 to accept his counter.

It seems clear to me now that the seller was eager to send written notice of withdrawal of his counter offer because he had received a better offer and was chomping at the bit hoping I would not accept by midnight August 19.

My question is - is there anything I can do here? Do I have any grounds to demand the seller perform? I'm going to call a real estate attorney in the morning - just wondering if anyone has been through a similar situation.

[Gregory Hill]

An offer is simply that, and offer to enter into a contract.  If you put an expiration date on it, then the offer expires at a certain time, thus limiting the time the offeree has to accept the offer, in other words it is automatically withdrawn at that date and time.  An offer may be withdrawn at any time before it is accepted.  In order to have a valid contract, there must be both an offer and acceptance.  An offer cannot me accepted once it is withdrawn.  Further, an offer cannot be accepted after it has been rejected.

A counter-offer is a rejection of the original offer, and is a new offer to enter into a contract.  If it has an expiration date, it will automatically expire at that time.  If the offeree wants to accept the counter-offer, he must do so before the expiration.  A counter-offer, just like an offer, may be withdrawn at any time prior to its acceptance.

When the seller signed the offer, it is subject to the attached counter offer, and NO CONTRACT IS FORMED.  So the terms do not revert back to the original offer's terms, because no contract was formed, and you cannot sue as Jason Hirko suggested.  Further, just because there is an expiration date does not make it 'yours to sign' until the expiration, it is only 'yours to sign' until either the expiration or its withdrawal, whichever occurs first.

As Jay Hinrichs pointed out, sign as soon as you decide the terms are acceptable.

Finally Chris, what you were describing, that you had until a certain time to sign the contract, would be more of an option contract, i.e., the offer would be held open for a certain period of time, and you could enter into the contract at your option.  An option must be supported by consideration, in other words you have to put something into the deal, just to get the option.