Can a seller accept another offer while mine is contingent in Texas?

• Under TREC addendum 10-6, the seller can accept another written offer while your contract is still in place.
• If they do, they must notify you that they accepted it and that they require you to waive your contingency.
• You get the number of days written in the addendum to decide. To waive, you give written notice and deposit the additional earnest money.
• If you don't waive in time, your contract terminates on its own and your earnest money is refunded.
• Separately, a seller can sign a back-up contract with another buyer, using its own TREC addendum, in case yours falls through.

When you offer with a home sale contingency, the form is the Addendum for Sale of Other Property by Buyer, published by the Texas Real Estate Commission (TREC). Paragraph B answers this question.

In plain English: if the seller accepts another written offer, they notify you of two things, that they accepted it and that they require you to waive your condition. From that notice, you have the number of days filled in on the addendum. If you don't waive within that window, the contract terminates automatically and your earnest money comes back to you.

Paragraph C explains how to waive: notify the seller in writing and deposit the additional earnest money stated in the addendum with the escrow agent. Every notice goes in writing.

And paragraph D carries the biggest warning: if you waive and then fail to close only because you didn't receive your sale proceeds, you're in default.

Here's what that means for you: the contingency protects you if your home doesn't sell, but it doesn't take the new home off the market. The seller is still listening to offers, and you get a short window to decide whether you're in without that protection.

It's another way a seller keeps offers coming. Texas has a form for it: the Addendum for "Back-Up" Contract, also from TREC.

• The back-up contract is binding once it's signed, but it depends on the first contract terminating.
• Until then, neither side has to perform under the back-up contract, except as the addendum says.
• If the first contract doesn't terminate by the date written in, the back-up ends and the back-up buyer's earnest money is refunded.
• If the first contract falls through, the seller must notify the back-up buyer immediately, and the back-up's effective date moves to the day of that notice.
• An amendment to the first contract doesn't terminate it.

For you, as the first buyer, that means someone may be waiting in line. As long as you meet your dates, your contract comes first. And if you ever end up as the back-up buyer yourself, the same form works for you: your deposit comes back if the first contract holds, and you step in only if it ends.

1. Check the date and time of the notice. Your window runs from there. The addendum says time is of the essence: deadlines are met exactly.
2. Check where your sale stands. Does your home have a buyer under contract? Has their option period ended? The further along, the less risk in waiving.
3. Call your lender. One question: if your home doesn't sell in time, can you close anyway? That might be through a bridge loan, a line of credit, or carrying both homes for a while.
4. Decide with numbers, not nerves. If the lender says yes, waiving may make sense. If the lender says no, letting the house go and getting your deposit back is also a sound decision.
5. If you waive: written notice to the seller and the additional earnest money deposit, inside the window.
6. If you don't: the contract ends on its own when the window closes and your earnest money is refunded. You keep looking, deposit intact.

If you haven't made an offer yet and want to see whether a contingency is your best option, answer 5 questions at veronicayeary.com/sell-and-buy.

The best decision is made before you offer, not with the clock running:

• Ask your lender up front whether you could close without your sale proceeds. Then you already know your answer.
• Negotiate the addendum's days around your real situation, not the shortest number possible.
• Have the additional earnest money ready, the amount written in the addendum, in case you decide to waive.
• Move your sale along as fast as you can: house prepared, listed and, ideally, under contract.
• Write down a backup plan: which homes you'd keep looking at if you let this one go.

For the full addendum explained, see what a home sale contingency is in Texas.

• Believing your contract holds the house. With a sale contingency, the seller can keep accepting offers. Know that before you sign.
• Waiving out of fear of losing the house. If your home then doesn't sell and you can't close, you're in default. Waive with your lender's go-ahead, not in a rush.
• Missing the deadline. The addendum says time is of the essence. One day late and the contract is already over.
• Giving notice by phone. The addendum requires notices and waivers in writing. A call doesn't count.
• Thinking that letting the house go means losing. If you don't waive, your earnest money comes back. Sometimes walking away is the healthiest decision.

Picture a family in Garland who offered on their next home with the contingency addendum. Their own home is listed but doesn't have a buyer yet.

Two weeks in, the notice arrives: the seller accepted another offer and requires them to waive. Because they asked their lender about this exact scenario at the start, they already know the answer: without their sale proceeds, they can't close. They choose not to waive. The window passes, their contract ends, and their earnest money is refunded.

A few weeks later their home goes under contract, and they offer on another house, this time with a sale on the way. That's an example, not a real client; your lender's answer may be different.

• Your lender's answer about closing without your sale proceeds.
• The addendum's three blanks: the deadline, the days to waive, and the additional earnest money amount.
• Where your sale stands: prepared, listed, or under contract.
• The forms: addendum 10-6 and the back-up addendum 11-8, published at trec.texas.gov.
• Your backup plan if you decide to let the house go.

On contingent purchases Veronica Yeary handles in Dallas-Fort Worth, the answer to "what if the notice comes?" is written down before the offer goes in.

Does the seller have to tell me if they accept another offer?

Yes. Under TREC addendum 10-6, the seller notifies you that they accepted another written offer and that they require you to waive your contingency. Your window starts with that notice.

How many days do I get to waive my contingency?

Whatever was written in the addendum when you signed. The form leaves that number blank, so it's negotiated in each contract. That's why it's worth thinking through before you offer.

Do I lose my earnest money if I don't waive?

No. If the window passes without a waiver, the contract terminates automatically and your earnest money is refunded, under the TREC addendum.

What is a back-up offer in Texas?

It's a contract with another buyer that depends on the first contract terminating, using TREC's back-up contract addendum. If the first contract doesn't fall through by the date written in, the back-up buyer's deposit is refunded.

What happens if I waive and my home doesn't sell?

The addendum says that if you fail to close only because you didn't receive your sale proceeds, you're in default, and the seller can use the contract's remedies. That's why you waive only with your lender's go-ahead.

Before you offer with a contingency, it's worth knowing whether it's the option that fits you, or whether another one gives you more peace of mind.

Answer 5 questions and see which option fits you: veronicayeary.com/sell-and-buy

Call or text 469-441-8890 · veronica@veronicayeary.com

Veronica Yeary, Realtor®, CRS, ABR, SRS, CIPS · All City Real Estate DFW · Dallas-Fort Worth. This isn't legal or loan advice: your lender and the title company confirm your case.