What Is A Kick Out Clause In Real Estate? (Best solution)

A kick-out clause is a provision in a home’s sales contract that allows sellers to accept an offer with a contingency, generally the home sale contingency, while still showing their home in hopes of receiving a non-contingent offer.


What does active with kick out mean in real estate?

KO Active Kick Out: Property has an offer contingent upon the sale of another property by buyer. (Refer to TAR Form 1908) Still available for showings and backup offers. Will expire on the original expiration date the agent entered. The seller requests no further showings and does not want to entertain backup offers.

What does no kick out mean in real estate?

A “kick-out” clause is sometimes used if a seller wants to reserve the option to accept a better offer, once the property is under contract. A “no kick-out” clause means that the seller relinquishes this option once his/her home is under contract.

What does contingent with kickout?

CONTINGENT WITH KICK OUT Typically this means the seller of the home has accepted a contract from a buyer who also has a home to sell. This means that the seller has an opportunity to accept a different offer from a buyer and “kick-out” the first contract.

Is a kick out clause good for the buyer?

A kick-out clause protects the seller from the risks of a cooling housing market or having to re-list the home if the sale should fall through. A kick-out clause gives the seller some protection and flexibility and helps the buyer get the time they need to sell their home.

Are kick out clauses common?

Kick-out clauses are more common in buyer’s markets than seller’s markets because sellers want to ensure that they aren’t stuck in a drawn-out, lengthy home sale.

How do you do a kick out clause?

Once you make your contingent offer with a kick-out clause, the clock begins to tick. You must sell your home within the allotted timeframe or risk losing the home to another buyer. Basically, the kick-out clause gives you a little breathing room.

What does kicked out mean?

: to dismiss or eject forcefully or summarily.

What does kick out right of first refusal mean?

The right of first refusal, also called a kick out clause, is typically given to buyers that have proposed a contingency in buying the sellers property. This contingency is usually set on their home selling before they can close on the new house.

How do I break a contingent offer?

After the offer is made, it’s up to the seller to either accept the contingent offer, reject it or make a counteroffer that eliminates the contingency. If the seller is willing to accept the contingent offer, they typically have two options.

What is a 72 hour clause in real estate?

The 72-hour clause serves to mitigate the risk of losing prospective buyer(s). The seller is entitled to call upon the purchaser to comply within 72-hours with all the suspensive conditions, if and when, a bona fide unconditional offer to purchase is received from a third party.

What is an escape clause in a contract?

An escape clause is a contractual provision that absolves one party to the contract of performance under specific conditions. An escape clause relieves one party of liability for nonperformance if certain conditions are met.

How do I remove a contingency from my home sale?

How do you remove it? If a buyer makes an offer with a home sale contingency, you can counter them and ask them to remove it. This would likely require them to find an alternative solution, such as a bridge loan, to move forward.

“Kick Out” Clauses a Valuable Tool in Real Estate Contracts

In real estate transactions, it is common for a home seller to be approached by a possible buyer who is willing to pay a reasonable buying price, but who also has a property to sell. These are the types of situations in which the seller must determine whether or not to enter into a contract for the sale of the seller’s house that is contingent on the buyer’s house being sold. It is common for buyers to request a specific amount of time, such as 30, 60, or even 90 days, in which to sell the seller’s home.

This is a risk that the seller runs.

This is when a “kick out” clause, which is proposed by the seller’s attorney or real estate agent, may come into play to resolve the situation.

When a seller uses a kick out clause, he or she is allowing the buyer to continue displaying the property for sale while simultaneously “kicking out” the buyer if the seller gets an offer from another bidder who does not have a home sale contingency.

  1. In order for the buyer to purchase the seller’s house, the buyer must first get a contract for the sale of the buyer’s house and be able to transfer ownership of that house.
  2. The seller agrees.
  3. If the buyer is able to sell their home during that time period, the buyer will take possession of the seller’s property.
  4. It is in this manner that the seller is not adversely affected if the buyer does not sell their home.
  5. Typically, this is accomplished via the use of attorneys.
  6. The most usual time period permitted for the first buyer to reply is 72 hours, according to industry standards.
  7. For example, when do you start counting down the 72 hours until midnight?

As an alternative to giving the purchase 72 hours notice, I prefer to give the buyer until 4:00 p.m.

All parties will be aware of the specific time range in which the buyer must make a choice and notify the seller, so reducing confusion.

Generally, if the initial buyer agrees to proceed with the purchase, the closing of the title will take place within 45 days following the buyer’s choice to proceed with the purchase.

A contract can be terminated in most situations, and the money paid as a deposit by the initial buyer is returned to them.

It is advantageous to both parties when a kick out clause is used.

It also permits the seller to continue displaying the house to other purchasers as a precautionary measure in the event that the original buyer is unable to sell their property.

Depending on how quickly the seller gets an offer from a second bidder, it might take anywhere from five to seven days before the seller is certain that the initial contract has been terminated.

The seller’s ability to locate second bidders may be hampered as a result of this. This condition is important in the sale and purchase of real estate in instances when a buyer has a house to sell and a seller does not want to tie up their property while they wait for the buyer to get a sale.

Blog – Kick Out Clause: Does It Help or Hurt The Buyer?

Selling or purchasing a property has always relied on the ability to time events perfectly. A buyer’s previous property must often be sold in order for them to be able to receive the finances necessary to purchase their new home. Many purchasers want to select their new house before they sell their present property in order to avoid having to move twice in the same period of time. So, what do you do if you’re a buyer who has found your ideal home but hasn’t yet sold your current home? What should you do?

  • A house sale contingency is a clause in a buyer’s offer that states that they will only purchase a home if they first sell their current residence.
  • It asks the seller to remove their house from the market and wait.wait for you to sell your home, presumably in a short period of time.
  • Your right to rescind your offer and obtain your earnest money back if you are unable to sell your home within this time limit is protected by the law.
  • There isn’t much.
  • They’ve wasted all of their time while waiting for you to arrive.
  • A “kick-out” clause, on the other hand, might help to make them more acceptable to sellers by allowing them to be included in the contract.
  • Your offer is still on the table, but if the seller receives an uncontingent offer that they wish to accept, they can notify you of the new offer and you must make a choice within 72 hours of receiving the new offer (or whatever time period was agreed upon).
  1. Your contract can be terminated, and you will receive your earnest money deposit returned, allowing the seller to accept your non-contingent offer
  2. But, you will forfeit your legal rights. However, you must remove the house sale contingency from the purchase agreement in order to proceed with the acquisition. This implies that you must come up with the finance necessary to secure the new property, and you must provide documentation to prove that you have done so
The Benefits and Disadvantages of a Kick-Out Clause

There are advantages and disadvantages to using a kick-out clause, and this is true for both you and the seller. Always keep in mind, however, that a non-contingent offer that does not include a kick-out provision will still be more appealing to the seller overall. The less friction there is in the home-selling process, the better off everyone is. Sellers just want to get their house off the market. The more conditions they have to meet, the more probable it is that they will look at alternative offers.

For the Seller

So, why would a seller include a kick-out clause in their purchase agreement? Obviously, it reduces the seller’s risk while also providing them with greater freedom. Once your offer is accepted by a seller and another is placed on the table, both of which include a house sale contingency, your kick-out clause immediately makes your offer more appealing to the vendor. It provides the vendor with some wriggle space. Although your offer may wind up being the most advantageous at the end of the day, the seller has the right to keep their house on the market in the event that a better opportunity presents itself.

In the event that they get a compelling, non-contingent offer, they may be required to wait up to one week before you are freed from your contract.

For the Buyer

The kick-out clause is advantageous to a buyer since it gives you the opportunity to discover a new house before selling your current one. You won’t be able to take your time. The clock starts ticking as soon as you submit your contingent offer with a kick-out clause to the seller. You must sell your home within the timeframe specified, or you risk losing the property to another potential bidder. To put it simply, the kick-out clause provides you with some breathing room. The kick-out clause may provide you with additional time to sell your home before purchasing another, but it is not without its drawbacks.

How to Avoid a Kick-Out Clause

The kick-out clause is plainly advantageous in some situations. It makes a home-sale-conditional offer more acceptable to a seller by softening the terms of the offer. However, even if you accept the adjustment, you will be at a disadvantage if a non-contingent offer is made to you. A non-contingent offer is the only way to level the playing field and ensure that everyone gets what they want. Many different contingencies can be included in a house sale contract, and in fact, 76 percent of all contracts include some type of contingency in some form or another.

  1. Most sellers are accustomed to receiving offers that include at least a number of these conditions; but, if you can eliminate as many of them as possible, you will boost your offer significantly.
  2. It is never a good idea to eliminate inspection and title conditions from a purchase agreement.
  3. The seller should be able to correct any damage or faults that are discovered by the inspection.
  4. To avoid being surprised by the contract, make sure you understand it and have the ability to cancel it should the vendor and you fail to reach an agreement.
  5. Common difficulties that a title firm may discover include a previous lien that was never paid off and unpaid real estate taxes that were not paid on time.
  6. Fortunately, the majority of title difficulties are straightforward to handle and do not result in you losing your property.

Buyers that make all-cash offers are more likely to be able to eliminate the house sale contingency, the finance contingency, and the appraisal contingency from their contracts. Offering all-cash for a purchase is advantageous to both you and the seller. The reason behind this is as follows:

The Buyer

An all-cash offer, on the other hand, ensures that you will nearly always win out a competing offer with various conditions. Even if you choose to give the seller the kick-out clause option since you haven’t sold your existing house yet, there is a chance that they will receive a higher offer. Due to the fact that cash offers are more appealing to sellers, you may expect to save up to 5 percent on the sales price if you make a cash offer. You won’t have to wait long for the store to close, either.

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The Seller

All-cash offers are the ones that attract the attention of a seller. They understand that all-cash deals have a lower risk of falling through, are more dependable, and close faster than any other offer they might make. Rather of waiting months, they may cease advertising their house, begin packing, and move out in days rather than weeks.

How to Secure Cash to Make an All-Cash Offer

Considering partnering with Homeward if you don’t have have access to enough cash to make an all-cash offer on your home. Our firm is revolutionizing the way real estate is purchased and sold. In order to get started, all you need to do is complete a simple online application form. Once your application has been accepted, we will evaluate the worth of your existing house and determine your home equity. You may utilize our cash to make an all-cash offer for a house without having to worry about a home sale, finance, or appraisal contingency – or having to worry about a kick-out provision.

  1. Once everything is completed, you will close on your new house and begin repaying your new mortgage.
  2. This is the most effective method of removing all of the stress associated with traditional property purchasing.
  3. As an alternative, you get the house you truly want, when you really want it!
  4. Because you paid cash for the house, it is now your property.

What Is a Kick-Out Clause? How This Clause Can Help Sellers

In the event that a seller receives an offer that contains contingencies, or criteria that must be satisfied, a kick-out clause allows the seller to continue promoting the property. One of the most often seen conditions is that the purchasers must sell their present residence first.

However, if a better offer comes up, a kick-out clause in the sales contract permits the seller to “kick out” a bidder with contingencies (after a certain length of time). Continue reading to find out how this provision works and what you should do if you come across one in a purchase agreement.

What is a kick-out clause?

Consider the following scenario: a seller has identified potential purchasers, but the buyers are unable to purchase the home until their present residence is sold. Because it is not in the seller’s best interests to take the property off the market for an infinite amount of time while waiting for the buyers to sell their home, a compromise known as a “kick-out clause” may be utilized to avoid the seller’s home from being taken off the market. This provision states that the seller has the right to continue marketing the home even if the contract is dependent.

During this time, they can either remove the contingency and continue with the contract, or they can utilize the contingency to opt not to purchase the new property.

A compromise for buyers and sellers

Selling with a kick-out provision is a reasonable option for sellers since it allows them to continue to advertise their home even after they have signed a contract. They retain the right to display it to other possible purchasers and, depending on state laws and regulations, may even take backup bids on the property. When it comes to purchasers, a kick-out clause might make their offer appear weaker than it would be if it didn’t exist. Sellers may be hesitant to accept the risk, especially if they have already received competing offers.

For example, a seller who receives a greater offer may be able to utilize additional conditions, such as the finance contingency, as evidence that the first bidder is unable to complete the purchase of the property.

Whether you’re a buyer or a seller, be sure you understand the contents of a sales contract before signing on the dotted line to complete the transaction.

If necessary, get the assistance of a real estate agent or a lawyer on the particular language to include in your sales contract.

What Is a Kick Out Clause and How Does It Help Sellers?

In a real estate market that seems to be moving faster and faster every day, a kick out clause might be a fantastic idea. But what exactly is a kick out clause, and what elements should you take into account when deciding whether or not to utilize one in real estate?

A Kick Out Clause Real Estate Situation

Your real estate agent called to tell you that you had received an unconditional full-price offer on your home. However, the buyer must first sell their own home before they can make an offer on your property. They’ve inserted a contingency for the sale of your property in their offer, which might cause you a lot of headaches. A house sale contingency indicates that you will have to wait and see if the buyer is able to sell their home within the time frame set in the purchase agreement before accepting the offer.

When agents compete for your business, you win.

If the transaction falls through, you will have wasted months of your time and will have to go through the inconvenience of re-listing your house.

As you can see, the buyer is the primary beneficiary of this sort of contingency.

An opt-out provision comes into play in this situation. What is a “kick out clause” and how does it work? The buyer’s agent might include a clause in the sale agreement allowing the seller to continue selling the property while the buyer is attempting to sell their own.

The Value of a Kick Out Clause Real Estate

A kick out clause in a purchase agreement allows you to continue promoting your house after accepting a conditional offer on your property. If the buyer requests a house sale contingency because they must sell their own home before purchasing yours, this is the most usual situation in which it is employed. The clause’s name comes from the fact that if you receive a higher offer without conditions, you can basically push the buyer out of the transaction, which is how the clause got its start. You will, however, still be compelled to tell the buyer that you have received a second offer if you choose not to accept the first.

In most cases, a copy of the offer with the buyer’s name deleted is adequate proof of acceptance.

The decision to terminate the contract is theirs, and you are free to sell your house to the buyer who makes the most acceptable offer.

As a result, you should only accept a sale price that you are comfortable with because the transaction may go through.

Benefits of Kick Out Clauses for Sellers

A kick out clause allows you to accept a conditional offer while still maintaining your freedom of choice. Additionally, your real estate agent will still be allowed to promote and display your house to other interested parties. If a better bargain without contingencies becomes available, you will either be able to accept it or you will be able to push the initial buyer to reduce their conditions, which will result in the transaction being completed more quickly. Having a kick out clause in place will also encourage the initial buyer to sell their house as soon as possible after signing the contract.

In some cases, including a kick out option in the contract might result in a higher sale price overall.

Having the knowledge that there is another bidder may encourage them to make their best offer if they fall in love with your home.

What makes kick out provisions so useful is that they allow you to eliminate the original buyer if you get another offer without contingencies or a higher price that they cannot match. Commissions can be saved. Top agents may save you hundreds of dollars in agent costs!

Is a kick out clause good for the buyer?

In some ways, a kick out clause in real estate may be beneficial to purchasers since it encourages more offers with contingencies to be accepted by sellers. Sellers could be far more reluctant to offer the potential buyer such significant leverage if the kick out option were not in place, according to the reasoning. A kick out clause protects the seller in the event that the buyer fails to sell their other property within a certain time period. While this is true, there are several disadvantages to accepting a dependent offer that you should be aware of before accepting one.

Why Are Kick Out Clauses Bad?

Despite the fact that kick out provisions provide you with greater security when accepting an offer with contingencies, things may and do go wrong.

Financing Issues

If you receive a second offer and the original buyer chooses to proceed without conditions, this does not always imply that the closing procedure will be straightforward. It is possible that the buyer may not have enough income to support two mortgages, and that he or she will have difficulty securing financing. No matter how much the initial bidder agreed to waive the finance contingency, it’s doubtful that the transaction would close if they are unable to obtain financing. The buyer’s earnest money may be retained as compensation, but you will still be required to re-list your house on the real estate market.

If they are unable to obtain a pre-approval letter demonstrating that they will be able to afford two mortgages, then you will be free to proceed with the second buyer without further delay.

Poor Timing

In addition, one disadvantage of kick out provisions is that they might cause misunderstanding as to how much time the initial buyer has before making a decision on how to continue. On weekends and holidays, it is possible that the buyer will not be able to reply within the 24 to 72 hour time limit stipulated in the contract if a second offer is received. Fortunately, this problem may be addressed by setting a more precise date, such as “4:00 PM on the second business day following the buyer’s notification of the deadline.” This, on the other hand, may have the unintended consequence of alienating the second customer.


Kick out provisions are complicated and might be difficult to construct in the appropriate manner. Because they are so beneficial, your real estate agent will need to be knowledgeable with them in order to know what sort of contractual language to add in the purchase agreement in order to get the most advantage out of them.

How To Execute a Successful Kick Out Clause Real Estate

Given your knowledge of kick out clauses, you can see that it takes a professional real estate agent to enforce these types of clauses and coordinate interactions between you and the purchasers on both sides. Using UpNest to search for a highly qualified real estate agent who is capable of handling a house sale with various contingencies might be a good starting point. As a member of the top 5 percent, you’ll have access to real estate agents who will handle every element of your real estate transaction while also offering you a discount on listing costs.

  1. Is it typical to have a kick out clause?
  2. The use of contingencies is increasing in a competitive real estate market, as buyers and sellers seek the best possible price for their property.
  3. This is because buyer’s markets may leave homes on the market for an extended period of time without selling, and sellers try their hardest to avoid this by not disrupting their marketing efforts.
  4. It signifies that an offer has been made on a home or property, but the offer is contingent on the sale of another property by the person who made the offer on the home or property.

Essentially, this implies that while the house continues to be promoted and is still available for showings and offers, the house will be sold through the initial offer if and only if that individual is successful in selling their property within the time frame stipulated in the kick out provision.

Kick- Boston Real Estate Lawyer Pulgini & Norton

Real Estate Attorneys Providing Guidance in Boston Buyers and sellers are both parties involved in the transaction. Most of the time, there is some period of time between a seller’s capacity to sell a property and his or her ability to purchase a new home. In many instances, sellers rely on the revenues of the first deal to assure the success of the second transaction. In rare situations, a seller may be able to use the equity in their present home to purchase a second property. When a buyer submits an offer to purchase a home, he or she includes a number of stipulations.

  • The buyer is entitled to a reimbursement of the earnest money deposit if the condition is met.
  • Contact the Boston real estate experts at PulginiNorton if you are debating whether to offer or accept a kick-out clause in a contract.
  • In order to safeguard their deposits, they may try to tie their own performance to the sale of their present property.
  • Despite the fact that this is a legitimate request from the buyer’s perspective, the seller is taking a risk by agreeing to it since if the buyer does not truly sell the home over the set term, the buyer has the right to cancel the contract and receive their deposit back.
  • A kick-out clause might be an effective answer for a seller in some situations.
  • If the buyer sells the house during that time period, the buyer becomes the legal owner of the seller’s property.
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If the seller receives a legitimate offer, the kick-out clause will specify a period of time, sometimes as short as 72 hours or as long as a certain number of business days, during which the buyer can choose whether or not to waive the home sale contingency or terminate the purchase and sale agreement.

  • If the buyer decides to cancel the arrangement, the seller is free to sell the property to the new non-contingent buyer who has expressed interest in it.
  • On the other hand, in certain instances, the buyer chooses to purchase the seller’s home without first selling his or her own home.
  • A real estate contract may have two or more contingencies, depending on the circumstances.
  • If a buyer waives the house sales contingency, it is possible that a finance condition may remain in place.
  • Consult with a seasoned real estate attorney in the Greater Boston region.
  • For either a buyer or seller, an experienced Boston real estate lawyer at PulginiNorton can help you create a kick-out clause as well as the remainder of an offer or a purchase and sale agreement, depending on your specific situation.

The real estate transaction attorneys at PulginiNorton represent buyers, sellers, and lenders throughout Massachusetts, including Somerville, Weymouth, and Medford. Call us at 781-843-2200 or fill out our online contact form to schedule a no-obligation consultation.

The Kick-Out Clause: Your Key to Avoiding a Contingency Nightmare?

In our minds, a world in which every real estate transaction is straightforward, certain, and rewarding is what we are working toward. As a result, we strive to maintain high standards of journalistic integrity in all of our postings. As any seller would be happy when an offer comes in for their house — but that joy quickly fades when you learn that the offer is conditional on the sale of the buyer’s home first being completed. Is it possible that their house could take weeks or months to sell, and you will be stuck waiting indefinitely?

On the other hand, their property could sell fast, and you don’t want to take the chance of losing out on a lucrative transaction.

Generally speaking, real estate contracts are written in a way that is beneficial to the buyer in most cases.

(Photo courtesy of Adeolu Eletu / Unsplash)

A closer look at contingencies

Allow us to briefly discuss contract contingencies before delving into the intricacies of the kick-out provision. In real estate, a “contingent” offer is one in which one or both parties have requested that certain conditions be met before the transaction is finalized. According to the National Association of Realtors (NAR), as of May 2020, 76 percent of contracts had contingencies of some kind. 76 percent Buyers are expected to plan for these contingencies in the event that their house does not appraise, a title issue arises during the closing, or they are dissatisfied with the results of their home inspection.

The “home sale” contingency is what this is referred to as.

One of the most significant hazards involved with this sort of offer is when there are two or three house acquisitions that are all dependent on the sale of another property being completed simultaneously.

The ideal circumstance would be to get an offer that does not include a contingency for the sale of the house.

Additionally, if you choose to accept a cash offer on your house from a direct real estate buyer, you will have to deal with significantly fewer of these stipulations.

Protecting yourself with a kick-out clause

A kick-out clause can be included to the sales contract in the event that you decide to accept a contingent offer. This condition provides you the right to continue selling and showing the home throughout the contingency period. It will provide the original buyer an opportunity to remove the condition in the event that you get a competing offer. If they are unable to delete it or do not do so by the deadline, you have the option to “throw out” the initial buyer and accept the new buyer. If the original buyer sells their present property within the contingencytimeframe, the kick-out clause is no longer in effect, and you are no longer permitted to promote the house to other potential purchasers.

Regardless of whether the sale of the buyer’s home is reliant on it, she includes one in every contract she creates.

If the initial buyer fails to withdraw the contingency and proceed with the deal within a specified time period, the seller has the right to take them out of escrow.

(Photo courtesy of Paul Siewert / Unsplash)

What happens if another offer comes in?

You should advertise your house with a status such as “Dependent With Kickout” if you have accepted an offer that is contingent on the sale of your home and have included a kick-out clause in the agreement. Informing other purchasers that the property is still available for viewings and backup offers is a good idea. MLS listing statuses differ across the country, and your agent will know which one to use for your house and will make sure that it is updated as soon as possible. If you get a second offer, you have a responsibility to tell the first buyer and to provide documentation of the offer that does not reveal the identity of the parties who made the offer.

The letter will grant the first buyer “the right of first refusal,” which means that they will have a specific amount of time to determine how they want to proceed after receiving the notification.

on the third business day following notice,” as an example.

Following your timely notification of the second offer, the buyer has two primary options: 1) accept the offer as is, or 2) reject it.

  1. You have the option to cancel the contract and receive a refund of your earnest money deposit, after which you are free to accept the other offer. In order to acquire your house, they must remove the condition from their offer and provide documentation proving they have received financing.

Pardee reminds out that if the seller receives more bids, he or she can use them as leverage to exert pressure on the buyer who is already in the escrow process. The use of a non-contingent backup offer provides the seller with a measure of authority and control, she explains, particularly in situations when the initial bidder requests a large number of expensive repairs. In the event that another party is waiting in the wings with a non-contingent offer, you may have more discretion to refuse such requirements.

On the other hand, the initial (contingent) contract may provide you with some bargaining power with the back-up purchasers, allowing you to persuade them to offer a greater price than they would otherwise.

Cement and execute your kick-out clause with these 4 tips

  • The importance of paperwork cannot be overstated. Consistently put the agreement in writing and ensure that both sides sign the contract before proceeding. As a result, the kick-out clause will not be in effect, and you will be unable to bring an action to enforce it. The importance of timing cannot be overstated. To avoid any uncertainty or misconceptions, provide explicit timelines in your contract. A condition may stipulate, for example, that if a second offer is received, the first bidder would have three business days to finalize the purchase of the property, regardless of whether their house had sold or not. This is not an immediate sale. While a kick-out clause provides you with some security and control, it also comes with a certain amount of danger. The contract with the original buyer may not be terminated for many days if you accept a backup offer and exercise the kick-out option. If you choose to accept the backup offer and exercise the kick-out clause, you may have to wait several days. It’s possible that the prospective buyer will not want to wait around and will instead prefer to look for an other home that is not already under contract. Consider teaming up with an agent who has previous expertise dealing with kick-out provisions. It is only through experience that a knowledgeable agent will know whether to propose include the clause in the first place and then assist with structuring the terms and enforcing the real “kick-out” if it is necessary.

It can be handy in situations when you don’t want to pass up a contingent offer, but you also don’t want to be forced to wait weeks or months for the buyer’s transaction to close. Just make sure to obtain advice from a seasoned attorney to ensure that your provision is clear, explicit, and unambiguous. Header Spiroview Inc / ShutterStock is the source of this image.

What Does Contingent Upon Kick Out Mean?

What does the phrase “Contingent With Kickout” refer to? This indicates that the property is still available for inspection and purchase.


Typically, this indicates that the seller of the house has accepted a contract from a buyer who is simultaneously in the process of selling their own home. The buyer’s offer has a “Kick-Out” provision, which allows the buyer to withdraw from the transaction. If the seller receives a better offer from another bidder, he or she will have the option to “kick-out” of the initial contract. If a seller accepts a kick-out clause, it may be an acceptable agreement since it allows them to continue to advertise their home even after they have signed a contract.

After receiving a superior offer—one that has no conditions or is all cash, for example—the seller can “kick out” the original bidder unless both parties come to an agreement within 72 hours of the initial offer being received.


A seller who receives a home-sale contingency offer in a competitive market may not even consider it. Making an offer without the home-sale contingency is one approach for a buyer to try to avoid being subjected to a kick out provision. Another method for making your proposal more appealing in general is to submit an offer that is fully devoid of contingencies — for example, surrendering your right to inspections or securing financing — but this comes with extra dangers. We can assist buyers and sellers in understanding the advantages and disadvantages of contingent offers, as well as navigating the offer process.

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Determining The Value of Your Home

Many of the same headlines that we are seeing about how crazy the real estate market is right now are likely to be reaching you as well. Homeowners are paying greater attention to the worth of their homes than they have in the past. It makes logic when you think about it.

The Pros and Cons of a ‘Kick-Out’ Clause

Typically, this provision is included in an offer if the buyer has a contingency in their offer, such as the requirement to sell their present property in order to complete the purchase of the new home. To put it simply, a kick-out clause permits the seller to reject the first buyer’s offer in the event that a more favorable offer comes up. As Ramona Williams of Keller Williams Partners in Colorado Springs, Colo., recently told Clever, “Every contract we create where a buyer has to sell a home in order to purchase another property will include a kick-out clause or a contingency offer” in it.

  1. “The kick-out clause is employed in both a buyer’s and a seller’s market,” Redfin writes on its blog, which also discusses the advantages and disadvantages of these provisions.
  2. Using a kick-out clause, a buyer may be prevented from taking on two mortgages if they have a condition to sell their second house first.
  3. If a seller receives a more attractive offer, the seller is required to tell the first bidder in writing, often giving them a 72-hour window to make a decision.
  4. If they are unable to complete the purchase of the house, they are often entitled to receive their earnest money returned, depending on the wording of the provision.
  5. These provisions allow a seller to continue marketing their home while it is on the market.
  6. However, there is always the possibility that the second buyer may back out, resulting in the seller losing both the first and second offers.
  7. In light of the fact that creating a kick-out clause can be difficult, it is recommended that the clause be examined by a broker or legal counsel prior to the parties signing the agreement.

More information on the complexities of kick-out provisions may be found here.

What Is A Kick Out Clause, And How Can You Avoid One?

A kick out clause, also known as an active kick out, is a unique sort of contingency that can assist house sellers receive the best offer while making it simpler for buyers to get a contingency approved. Kick out clauses are used in a variety of situations, including real estate transactions. In this section, we’ll go over the definition and operation of a “kick-out clause,” as well as what both buyers and sellers should be aware of when utilizing one.

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What is a kick out clause?

Kick out provisions allow a house seller to continue showing their home to prospective buyers even after they have made a conditional offer on the property. The inclusion of a contingent provision in a house-buying agreement ensures that the home sale will proceed only if specific criteria are satisfied, such as the payment of a down payment. Customers have the advantage when they include contingencies in their purchase agreement because they can back out of the transaction without losing the earnest money deposit they made on the house.

In addition, the seller has the option of waiting for a better offer.

Sellers who have received an improved offer and who wish to switch purchasers are required to provide written notice to the original bidder under the terms of the contingent contract.

The majority of the time, dealers offer purchasers around 72 hours to make this selection.

What sellers need to know about kick out clauses

If a seller is dissatisfied with a contingent offer on their house, kick out provisions can be quite beneficial to them. They may be able to obtain a higher offer if they are permitted to continue showing their house to prospective buyers; but, they will have already begun the selling process with the initial buyer. While not all purchasers will agree to a kick out clause, some may consider it to be a preferable alternative to having their offer rejected outright in most cases. sellers have a limited amount of time to hunt for a new offer on their property For example, if the buyer has a contingency that they must sell their previous property before purchasing this one, the kick out clause will be terminated once they sell their old home (assuming they do so within the contingency time limit).

If this occurs, the seller will be unable to promote their house to potential purchasers in the future.

What buyers need to know about kick out clauses

Although kick out provisions appear to be a poor option for purchasers at first look, they are not detrimental to the buyer’s financial situation. In actuality, a kick out clause can just be the ace up buyers’ sleeves that they need to make sellers feel confident in accepting their contingent offer. The employment of a kick out clause is more popular in a buyer’s market since house sellers are more concerned about going through a lengthy home selling procedure in such an environment. As a buyer, you should be able to respect this because the reason the buyer is likely asking for a contingency is because they are concerned that their house will not sell soon.

What the kick out clause process looks like

Knowing what the kick out clause procedure entails might be beneficial whether you’re wanting to purchase or sell a house. 1. Include a kick-out clause in the contract’s language. Whenever a buyer wishes to make a contingent offer, they must first request that the seller add a house sale contingency term in their purchase agreement with the seller. This time might extend anywhere between 30 and 90 days, depending on the current market circumstances. Adding a kick out clause to the contract allows sellers to continue showing their home throughout this time period.

  1. Putting the provision into effect if you get a second offer.
  2. Suppose the first offer was $500,000 with the condition that the buyer would equal or better the new buyer’s offer of $550,000 with no condition.
  3. 3.
  4. The buyer can also opt to walk away from the transaction at this stage, and their earnest money deposit will be refunded to them in full.
  5. It is possible that they will end up owning two properties if they are unable to sell their first property in time.
  6. Enter into a new contract with the buyer or continue to do business with the previous buyer.

The downsides of kick out clauses

While kick out provisions provide a number of significant advantages, particularly for sellers who are hesitant to accept a dependent offer, there are some disadvantages to using kick out clauses as well.

Consider the complexities of kick out provisions, which both sellers and purchasers should be aware of and avoid at all costs.

Downsides for sellers

Even though owners can still advertise their house for sale, residences that are actively offered with a kick out provision may not attract as many purchasers, depending on the circumstances. As soon as purchasers discover that a home is currently reliant on the buyer fulfilling the terms of a kick out clause, they realize that they will need to act swiftly and make an aggressive offer to secure the property. Sellers also run the risk of pushing out the initial bidder and the new offer falling through as a result of the eviction.

Obviously, this isn’t the best situation.

Downsides for buyers

The most significant danger for purchasers is that a second offer will be accepted, in which case they will find themselves in a variety of difficult scenarios. The greater offer on the property can be matched, but if their home hasn’t sold yet, it might be stressful, since owning two homes isn’t always a viable option. They can also make significant headway in the house selling process and find themselves with offers just after the seller pushes them out, leaving them without a new place to call home for the next several months.

Is a kick out clause required?

Sellers are under no need to include a kick out clause in their contracts if they do not choose to. When it comes to making their offer more competitive, buyers may do a number of things, and dealing with a contingent offer might be worthwhile for sellers in some situations. Among other things, a buyer may be able to offer a higher price than the asking price or may have a substantial earnest money deposit on hand. If a seller isn’t in a rush to sell their house and wouldn’t mind having a little additional time to hunt for their next home, they may even welcome the breathing room that a contingent offer might provide them in the process.

How can you avoid a kick out clause?

Kick out clauses aren’t for everyone, and they should be avoided if possible. Buyers who wish to avoid a kick out clause typically want additional assistance in managing the sale of their current property and the purchase of a new one at the same time—especially when purchasing in a competitive seller’s market. Orchard is a tool that can make this procedure a little simpler. Orchard assists customers in selling their old house on their own timetable by providing them with up to 90 percent of their home’s worth up front to use toward the purchase of a new property.

What Is a Kick-Out Clause?

13th of November, 2019 It’s likely that the phrase “kick out” doesn’t have the most positive connotation when it comes to real estate. However, when it comes to selling a property, a “kick-out provision” is a very frequent requirement that is included in the sales contract.

The importance of understanding what a kick-out provision is when selling your property or when you are a homeowner who is planning to move is critical, regardless of whether you are selling or buying.

The Simple Definition of a Kick-Out Clause

Before we get into detail about what a kick-out clause is, we must first discuss the following contingencies: The term “contingent” refers to a property that has been identified as such because an offer has been made and accepted by the owner. As opposed to being “sold,” it is reliant on specific stipulations being approved by the other party, which has yet to be approved by one or both sides. An example is the house-sale contingency, which indicates that the transaction is conditional on the buyer selling their home first, before the sale can proceed.

Consequently, the sales contract practically states, “If the seller sells their property, the buyer will formally purchase the home on or before the xx/xx/xx/xx date.” “If they haven’t, the transaction will be canceled.

If the buyer receives another offer, the buyer will only have 72 hours to remove the contingency from his or her contract.

3 Advantages of a Kick-Out Clause

While kick-out clauses appear to be in the seller’s advantage, purchasers frequently demand on them as well. They have a number of advantages, which are detailed below.

1. Low-Risk Sale

Once again, the advantages to the seller are self-evident. The most important advantage is that they can lock in a buyer while simultaneously having the option to terminate the contract if a better offer comes up. That is the kind of peace of mind that any merchant would cherish. In addition, it is beneficial to purchasers. Consider the possibility of discovering your ideal house before you are able to sell your existing residence. It seems likely that most individuals would have to take out two mortgages before they were able to sell their first home if there were no kick-out option.

Both options are undesirable, which is why many purchasers appreciate the inclusion of kick-out provisions.

2. Marketing Opportunities

Sellers also appreciate the fact that they are able to continue selling their property even after accepting an offer on it. They may even accept a greater offer from another bidder if the situation warrants it. Even if the “right of first refusal” would ensure that the initial bidder would have the opportunity to match the offer before losing the home, the seller would still come out on top in this scenario.

3. Room for Negotiation

If you are the selling, and the buyer asks you for a “out clause,” you should feel free to bargain a little bit more with him or her. Clearly, the buyer has a strong interest in your property. In this case, a frequent requirement for sellers is simply an aggressive timetable for the buyer to proceed with the transaction.

If you predict that further offers will be submitted, you will have even greater ability to drive the buyer into selling their home as soon as possible so that you can complete the deal.

3 Disadvantages of a Kick-Out Clause

Kick-out clauses, on the other hand, are not always a smart idea. Again, it may appear that sellers would be dumb to skip kick-out clauses, but they have the potential to backfire on either party.

1. Losing the House

As a homeowner wanting to sell your home, you would like to accept one offer before immediately turning around and putting another bid on another property. However, this is not always possible. As a result, there would be little (if any) overlap in your homeownership, which means you wouldn’t have to worry about paying two mortgages for very long. While a kick-out clause may appear to be your second-best option, it also means that you run the risk of losing your home if the seller gets a competing bid.

Every day that the house remains on the market increases the likelihood that someone else may make an offer on the property owned by the seller.

2. Losing an Offer

A seller’s right of first refusal means that they are not allowed to accept an offer if they have previously engaged into a contract with another bidder, even if they have a kick-out option in the agreement. Instead, they must allow the first bidder a specific length of time to match the offer they made. If you’re the seller, this probably doesn’t appear to be a negative development. In either case, you receive the bigger sum, correct? Despite the fact that wedidlist it as one of the benefits of a kick-out clause, there is a potential that both bids may fall through as well.

The next week, another bidder approaches you with an offer of $265,000.

They agree to match it, despite the fact that it will require them to take on two mortgages.

Unfortunately, you may discover out too late that your initial buyer is unable to obtain financing for two mortgages as originally anticipated.

3. Losing the Sale

Selling clauses in sales contracts that state that the agreement is invalid if the buyer cannot move forward due to inability to get finance are particularly important in this situation. As a result, if you get a superior offer, you might first insist that the first buyer verify his or her claim. With the assistance of a mortgage lender, they will be able to purchase the property. For example, insist on their becoming pre-approved for the loan while they are still paying off their present mortgage payment.

Are You Thinking About Selling Your House?

Kick-out clauses aren’t usually essential, but understanding how they operate might be beneficial if you receive an offer from someone who wants to sell their own home first before making an offer on yours. Of course, as you now see, it is not always in your best interests to incorporate such a provision in your contract. When it makes the most sense, a knowledgeable real estate agent can provide recommendations.

We at SimpleShowing would be delighted to assist you in connecting with such an agency. The best part is that we only charge a one-percent commission to list your house. Contact us right away and we’ll show you how easy it is to utilize our platform!

Get in touch. Send us a message now.

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