By David Clermont, Esq. · Published
In a Massachusetts home purchase there are two documents, and people routinely mistake the importance of each. The offer to purchase gets your bid accepted. The purchase and sale agreement, signed a week or two later, replaces it and becomes the contract. Almost everything that can go wrong later is decided in that second document.
Why the standard form is not neutral
Most Massachusetts transactions start from a standard-form P&S that has been in circulation for decades. It is a reasonable starting point, but it was drafted from the seller's perspective, and the version handed to you has usually already been modified by the seller's attorney. A buyer who signs it unamended is accepting someone else's risk allocation.
The window to change it is short — typically the few days between accepted offer and P&S signing. That is the week to have an attorney read it.
The contingencies
The financing contingency lets you walk with your deposit if your loan is denied. Watch the deadline and watch the wording. A commitment date that falls before your lender realistically expects to issue one is a trap, and a contingency written so it lapses automatically unless you give written notice is a different animal from one that survives until you waive it.
The inspection contingency is often already exercised or waived by the P&S stage, since inspections usually happen between offer and P&S. If yours has not, make sure the period is long enough to actually schedule an inspector and get a report, not just to book the appointment.
Title V, on septic properties. Massachusetts generally requires a septic inspection before a transfer. Establish in the P&S who orders it, who pays for it, and — the expensive question — what happens if the system fails. A replacement system can cost tens of thousands of dollars. That should not be an open question in the final week.
Deposits and what happens to them
The deposit is typically five percent of the purchase price, paid in two stages: a smaller amount with the offer and the balance at P&S signing. It should be held in escrow by a broker or attorney, not handed to the seller. Read what the agreement says about when it becomes non-refundable and what happens in a dispute — some forms provide that the escrow agent may hold the funds until the parties agree or a court decides, which can tie your money up for a long time.
The clauses people wish they had read
- Time is of the essence. If the agreement says it, deadlines are hard. Missing one by a day can be a breach.
- Extension rights. The standard form gives the seller a period to cure title defects. Know whether and how the closing date can move, and who controls that.
- What conveys. Appliances, window treatments, the shed, the generator, the mounted television. If it is not listed, expect it to be gone.
- Condition at delivery. Broom-clean, systems in working order, and the right to a walkthrough immediately before closing — with a remedy if something has changed since you last saw it.
- Use and occupancy. Whether the seller stays after closing, and on what terms. A handshake here becomes a landlord–tenant problem surprisingly fast.
- Limitation of the seller's liability. Many forms cap the seller's exposure at the return of the deposit. That is worth knowing before you rely on the agreement's promises.
If you are the seller
The same document is your protection. The terms worth attention are the deadlines you are agreeing to meet, what representations you are making about the condition of the property, how much of the buyer's due diligence you are obliged to cooperate with, and what remedy you have if the buyer simply fails to close. Sellers also carry the deed excise, currently $4.56 per $1,000, and should know their payoff figures before agreeing to a closing date.
Questions we get asked
Is the offer to purchase binding in Massachusetts?
Generally yes — a properly executed offer to purchase is an enforceable contract, which surprises people who think of it as preliminary. It is then superseded by the purchase and sale agreement. Because the offer can bind you, it is worth having contingencies stated correctly even at that stage.
How long do I have between the accepted offer and signing the P&S?
Usually about a week to ten days, though it varies with the deal. That short window is the entire negotiating opportunity for the terms of the actual contract, which is why an attorney should hear from you the day your offer is accepted, not the day before signing.
Can I get my deposit back if my financing falls through?
If the financing contingency is properly drafted, the deadline is met, and you gave any required notice — yes. Each of those conditions has ended deposits when it was not satisfied. This is precisely the clause worth paying an attorney to read.
What if the seller will not agree to my changes?
Then you decide with clear eyes whether to accept the risk or walk. Not every requested amendment is granted, particularly in a competitive market. The value of the review is not that you win every point — it is that you know which risks you are taking.
General information about Massachusetts law, current as of publication — not legal advice, and not a substitute for talking through your own circumstances with an attorney. Reading this page does not create an attorney–client relationship.
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