Escalation Clauses in Texas: Meaning and Examples

Escalation Clauses in Texas

Technically, Texas allows escalation clauses if they are designed by an attorney; however, TREC discourages using them. Nevertheless, in Texas, we nearly always advise against utilizing an escalation clause.
An escalation clause might facilitate the offer-making process regarding real estate.

An escalation clause is a buyer-seller agreement allowing the buyer to increase their offer if a higher one is made by another buyer. This article will review the fundamentals of an escalation clause in real estate.

An Escalation Clause: What Is It?

In a real estate contract, an escalation provision gives the buyer the option to raise their offer if a rival offer is made. A purchase agreement, an offer from a buyer to buy a piece of property from a seller, is usually where the clause is added. According to the condition, if a competitive offer is made, the buyer will boost their offer by a predetermined amount.

A seller may decide to accept an offer with an escalation clause or to accept the best offer when they get many offers for their house. By establishing the highest amount the buyer is ready to pay for the property, an escalation clause gives the buyer an advantage over rival offers. By doing this, the buyer may maintain their competitiveness and raise their chances of coming in first.

What Does an Escalation Clause Cover?

However, an escalation clause has multiple essential components. It will first state the highest price the buyer is prepared to pay for the real estate. This can be stated as a percentage rise over the existing offer or as a monetary figure.
The amount the buyer is willing to increase their offer if a competitive offer is made will also be included in the clause. This can be stated as a percentage rise over the existing offer or as a monetary figure.

Lastly, a time restriction will be included in the clause. Hence, the buyer has a window of opportunity to increase their offer after a rival bid is submitted.

Escalation Clause Examples

Usually, an escalation clause has multiple essential components. The following are some instances of escalation clauses that you may come across:

exclusively for informational reasons. Before moving forward with any real estate purchase, always get legal advice from an attorney or legal consultant.

Example 1: “The buyer agrees to increase their offer by $5,000 within 24 hours if there is a competing offer.”

Example 2: “The buyer agrees to increase their offer by $10,000 or 5%, whichever is greater, within 36 hours if there is a competing offer.”

Is It Legal in Texas to Use Escalation Clauses?


The Texas Real Estate Commission (TREC) prohibits agents from writing escalation clauses. TREC Rule 537.11(b)(5) prohibits license holders from drafting language that affects the rights, duties, or remedies of principals in real estate transactions, including escalation, appraisal, and contingency clauses.

TREC sees this as an unlawful practice of law. A contract cannot contain any provision that would allow or mandate one party to do this. An attorney will draft an escalation provision if the buyer requests it. Also, license holders may face disciplinary action, including a daily administrative fine of $500–$3,000 for each infraction.

Since TREC forbids agents from employing escalation clauses, they are uncommon in many Texas real estate markets. If a buyer decides to include an escalation provision, they must have a lawyer draft it. Since a real estate contract is a legally binding agreement, modifications may affect each party’s rights.

Escalation Clauses in Texas: How Are Escalation Clauses Implemented?

You attach an addition to your offer called an escalation clause, which states that your price will rise to a certain amount in the event of other offers. A copy of a rival offer is usually sufficient evidence to activate the clause. However, other agents think such a type of proof can be troublesome in real-world situations.

One explanation for this is the possibility of misinterpreting the buyer’s motivations. According to Rob Levy, principal broker at Keller Williams Realty Professionals in Portland, Oregon, “sometimes a competing offer may be for a price—say (the seller wants) $300,000—the second buyer’s written offer, making the total effective $290,000, is escalated to $310,000 due to the seller-paid buyer closing fees.
It is conceivable for offers to be made to trigger the provision, according to Kaki Lybbert, vice president of advocacy for the National Association of Realtors and a realtor with Century 21 in Denton, Texas.”They don’t appeal to me,”

The Texas Real Estate Commission has prohibited escalation clauses since 2016. Buyers in Texas are highly recommended not to utilize them, as they are far more complex than a regular offer. If they so want, they have to go through a lawyer, not a real estate agent.

Escalation Clauses in Texas: Escalation Requirement in Property

In a real estate contract, an escalation provision gives the buyer the option to raise their offer if a rival offer is made. Usually added to a purchase agreement, the clause has several important components, including the maximum amount the buyer is willing to spend and the amount they are willing to increase their offer if they get a rival bid.

To make sure everything goes according to plan while utilizing an escalation clause, it’s critical to comprehend the ramifications and consult with legal counsel.

Escalation Clauses in Texas: FAQs

What Does the Term “Escalation” Mean?

An inflation-adjusted escalation provision permitting rising supply costs over time will be included in a production contract. Escalation clauses are essentially clauses that provide for these gradual rises in pay or prices.

What Does Texas’ Choice of Law Provision Say?

A choice of law clause, sometimes referred to as a governing law clause, gives the parties to the contract the option of designating Texas substantive law as the applicable law.

Which Five Escalation Levels Are There?

According to Brody et al. (2016) and Knapp & Vangelisti (2010), there are five phases of relational escalation: initiating, experimenting, intensifying, integrating, and bonding. Tumult, stasis, de-intensification, individualization, and separation are the five phases of de-escalation.

Conclusion

In many areas, escalation clauses are standard practice, so sellers and listing agents there are aware of and accustomed to them. Escalation clauses are uncommon in Austin. This indicates that a large number of sellers and listing agencies are dubious about this unusual clause. Because of this, if you compete with a similar contract that has standard terms, escalation clauses may potentially work against you.

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