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Correct usage of Offer & Counter offer forms

I need clarification on correct interpretation/use of MAREP forms.
Assume there is already a seller Counter Offer(#1) on the Offer form. 
Buyer then submits separate Counter Offer form (Counter Offer #2).  Just above the area provided for Owner & Buyer names there is the following sentence:
"This Counter Offer is made by __Owner __Buyer under that certain __Offer to Purchase and Acceptance Agreement __Counter Offer dated _________________ between"
(check boxes indicated by short underlines)
 
It appears only one box, "Offer" or "Counter Offer", should be checked. Correct?
The box checked indicates the document which Counter Offer #2 seeks to modify?
(So, if both boxes are checked, this becomes legally ambiguous?)
Which box is best to select for a given situation? 
Is this determined by how much of the Counter Offer(#1) that Counter Offer #2 accepts? (Minimum rewriting and complexity)
If any stipulation of Counter Offer(#1) is rejected, or modified, should Counter Offer #2 reference the original offer and re-list any stipulations of Counter Offer(#1) that are agreeable?
The date blank helps identify the specific document of either type checked?
Any other guidance?
(FYI, I'm not filling out these forms. I'm making sure I understand proper use before I sign them.)

Thanks!
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October 26 2013 - Saint Louis
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Replies (10)

Contracts are a meeting of the minds and the forms are a tool to use to get there.
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October 27 2013
If you want to fully understand them ; please ask the persons that filled them out as to the intention and how they are modifying the terms of offer and counter #1.  Ultimately you should seek advice from a legal entity if you still do not follow what is countered;  it is not likely for anyone in this forum to legally or otherwise advise as to what you are asking... since we dont have all the info as to the context or what is intended and what the forms may say... ; so, please start with the preparer of forms to know more.. then an attorney... 
good luck. 
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October 27 2013
Profile picture for zuser20131026220022146
Hi Tim & Rachel:
I agree with your statement, but these forms (when signed) become a legally binding contract. It is important that both parties have a common understanding how the forms are interpreted, and interrelate. I have discovered the RE agent and the two parties all differ as to how the forms are to be filled out and interpreted. I could ask my lawyer for a "second opinion", but I thought there would be knowledgeable RE agents on this forum that could answer the questions I raised, based on their training and experience in filling out Offer and Counter Offer forms.

Thanks,
Chuck
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October 27 2013
Well, if we did, Chuck, then we might simply be siding with people who are also wrong! 
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October 27 2013
Profile picture for zuser20131026220022146
Hi Elisa:
Thanks for your advice. I must admit I have been working through my agent, and have not had personal contact with the buyer. Since it appears that all three have different ideas on the forms, a three-way conversation may be best. This should resolve any misunderstandings of the what we intend. Good counsel.
Once all three parties understand and agree what is intended, I still maintain that there must be a "correct" way to fill out and interpret the forms, otherwise no one else (court, if all else fails) could interpret and decide what we agreed upon. It is necessary, but not sufficient, that the parties agree; the completed contract should have a single interpretation that can be understood by others.
I am not intending to ask for answers specific to my situation. I'd like to know how the designers of the forms intended them to be used together. I don't think this is a subjective, or case-by-case question.
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October 27 2013
Profile picture for zuser20131026220022146
I appreciate the time people have invested in responses here.
However, I've been able to verify proper use of the Offer and Counter Offer forms from other resources.

As it turns out, the answers to my questions are fairly basic and when these forms are filled out that way, the resulting documents appear to provide a basis for consistent interpretation. (Not a huge surprise... Lawyers designed them.)

I am a bit surprised my off-line resources engaged and answered this question in a way that I had hoped this forum would, but did not. With over 100 people viewing this question, I had hoped someone would be both qualified and comfortable addressing the fundamental questions regarding the forms. 

I realize my Realtor should have been able to clarify this for me. The issue was that their completed forms did not follow the form's apparent logic, and further conversation indicated this was not an oversight -- they were unclear about how these check boxes worked. I was hoping to verify what I already strongly believed were the intentions behind the forms and did not think this warranted getting a lawyer involved. I thought: "Just ask some people that fill them out every day."

Fortunately, parties were not as far apart as the bad form usage had us thinking. (Thanks Elisa!)  In the end, I'm confident the forms are now completed as-designed and all parties agree the resulting document reflects the agreement.

Thanks,
Chuck
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October 30 2013
Sorry, Chuck. Licensees are really hesitant to interpret contracts for people who are not their clients.

All the best,
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October 31 2013
If you have a Realtor and they do not know how to fill out that form I'd be worried.  Very worried.

We are all from different states and every state has different forms.  In PA we don't use forms like that. Between agents we can counter in email, verbally or mark up the existing offer until we arrive at an agreement.  Then we either amend the original offer or redo the pages which have changed with agreement of the parties.

Structuring a counter offer is not a 3 way conversation.  One party is using the counter to change a price, term or condition of an offer.  The receiving party either accepts the counter or in turn they counter with their price, term or condition.  It can go on and on until a meeting of the minds is achieved.
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October 31 2013
Profile picture for zuser20131026220022146
Hello Sisters and All:
I agree this issue raised questions about the the Realtor. Fortunately, both seller and buyer are in professions familiar with reading and interpreting contracts (though not RE). Once we (apparently independently) figured out the root of the interpretation trouble, the Realtor had an easier job getting the document corrected and everyone trusting the prep of the forms. Although preparation of the forms should have been handled better, I don't want to judge too harshly on a single (though important) aspect of the Realtor's performance.

I see the Realtor as 'knowledgeable facilitator'. (This one might need a refresher on form prep, but otherwise OK.)  However, the parties have ultimate responsibility to make sure they understand the documents created and end up signing. That's what I was attempting to do, and ultimately succeeded, to the level I decided was needed (right or wrong).

Thanks to all, again, for the input. You've helped me better understand that differences in local RE law produces a 'prudent hesitance' when it comes to answering such questions in a forum that spans these jurisdictions. (Is is also likely my local resources were better positioned to answer, in that they know this region.)

Regards,
Chuck
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November 01 2013

I commend you for asking questions. You should never sign anything that you don't understand. You can consult an attorney but they will want to charge you. If you are working with a Realtor, the agent should be able to explain the process. If they can't, get another agent! Please be aware that agents are "licensed" to use the forms as members of the association that provides them. If you are using the forms without a Realtor, you actually are violating law (and you may need an attorney for another reason).

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December 15 2013
 
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