ContractsProf Blog

Editor: Jeremy Telman
Valparaiso University Law School

Monday, November 23, 2020

The Hot Housing Market and Odd Counteroffers

A couple of weeks ago, the Wall Street Journal published an article (behind a pay wall) on unusual contingencies in recent real estate contracts.  According to the article, the tight housing market has given sellers a bargaining advantage and made them feel more comfortable asking the buyer for more than just money.  One seller, for example, made her acceptance contingent on the buyer agreeing to hang a fake skeleton outside the front door 365 days a year.  The seller apparently liked to dress the skeleton up regularly, so that sometimes it sported a snazzy green body suit and other times a more respectable white blouse.  Other sellers made their acceptances contingent upon the buyer agreeing to take their pets.  One seller even asked the buyers to take care of feral cats on the property and left cans of cat food and paper plates so the cats wouldn’t cut their tongues on the cans.  Another seller asked the buyer to keep her husband’s ashes in a safe behind a bedroom closet – and the buyer agreed!

Are these continuing obligations enforceable?  I think that most of these would be considered against public policy and unenforceable.  I’m a bit rusty on my property law, but generally the law likes a sale to be a transfer of interests (at least after it is fully paid) without any ongoing ownership claims.  Yet, these types of clauses do raise some interesting questions about moral obligations created by promises even if they aren't legally enforceable.

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