Making an offer in Massachusetts is a two-stage process. You first sign a short Offer to Purchase with a deposit. If the seller accepts, you and the seller then negotiate and sign a fuller Purchase and Sale agreement (P&S), usually with attorneys reviewing it, and you pay an additional deposit. Closing follows on the date the contract sets. The detail most out-of-state buyers miss is that the accepted offer itself can be a binding contract, so you should understand it before you sign.
At a glance
- Contracts you sign
- Offer, then P&S
- A short Offer to Purchase, then a fuller Purchase and Sale agreement
- Deposits
- Two
- A smaller one with the offer and an additional one at the P&S
- Signed offer
- Can be binding
- McCarthy v. Tobin, 429 Mass. 84 (1999)
- Lead inspection
- 10-day opportunity
- For homes built before 1978
- Closing Disclosure
- Three business days
- Before closing
- Closing
- With an attorney
- An attorney must play a meaningful role
This guide explains each piece. It is general information, not legal advice; a Massachusetts real estate attorney should review your contracts.
Before you write an offer
Have these ready so you can move quickly when the right home comes up:
Have these ready
- A written pre-approval from your lender, updated for the price range you are offering in.
- Proof of funds for the deposits and down payment.
- An attorney you can reach on short notice for questions about the offer and to handle the P&S.
- The listing details: the seller’s disclosures, condo documents if it is a condo, the year built (which triggers lead paint rules before 1978), and any instructions from the listing agent about how and when offers are due.
If you are buying your first home, our first-time home buyer guide for Boston covers budgeting, programs and pre-approval in more depth.
What goes in the Offer to Purchase
The offer is usually a pre-printed form with blanks and an additional terms section. A typical offer covers:
| Term | What to decide |
|---|---|
| Price | What you will pay, and whether you will include an escalation clause |
| First deposit | The amount paid with the offer and who holds it |
| P&S deadline | The date by which the P&S must be signed |
| Additional deposit | The amount paid when the P&S is signed |
| Contingencies | Inspection, lead paint, mortgage and appraisal terms, each with a deadline |
| Closing | The date and place for the transfer of title |
| Expiration | When the offer lapses if the seller does not accept |
In the McCarthy case described below, the offer form included the property description, the price, deposit requirements, limited title requirements, and the time and place for closing, along with a printed notice that it was “a legal document that creates binding obligations.”
Deposits
Massachusetts deals typically use two deposits: a smaller one with the offer and an additional one at the P&S. The amounts are negotiated, not set by law. The contract should say who holds the deposits in escrow, and under what conditions they are returned to you or released to the seller.
Contingencies
A contingency is a condition that lets you exit the deal, usually with your deposit returned, if something specific happens by a specific date.
- Home inspection. Gives you time to have the property inspected and to withdraw, or to negotiate, based on what is found. See the rules below.
- Lead paint. For homes built before 1978, the federal disclosure rule gives buyers a 10-day opportunity for a lead inspection or risk assessment unless the parties agree in writing to change or waive it. Massachusetts separately requires sellers to provide the state lead notification materials before the P&S is signed (M.G.L. c. 111, § 197A).
- Mortgage (financing). Protects you if, despite diligent efforts, you cannot get a written loan commitment by a set date. The clause should name the loan amount and type and say exactly how and when you must notify the seller.
- Appraisal. Lets you renegotiate or withdraw if the property appraises below a stated value. Some buyers fold this into the mortgage contingency; others address it separately.
- Sale of your current home. Possible, but sellers often view it as a weaker offer.
Your right to a home inspection is protected, but the other terms are negotiable: the length of each deadline, any repair-cost threshold you agree to for the inspection, and whether you keep the mortgage and appraisal contingencies. Every protection you shorten or drop makes your offer simpler for the seller and riskier for you, so decide which risks you can absorb and talk to your attorney first.
Is the offer binding? McCarthy v. Tobin
In McCarthy v. Tobin, 429 Mass. 84 (1999), a buyer and seller signed a standard Offer to Purchase that called for a Purchase and Sale agreement by a set deadline and said it was “Subject to a Purchase and Sale Agreement satisfactory to Buyer and Seller.” Before the P&S was signed, the seller accepted another buyer’s offer.
The Supreme Judicial Court held that the offer was a binding contract. The court said “the controlling fact is the intention of the parties,” and that when the parties have agreed on all material terms, a later document can serve “as a polished memorandum of an already binding contract.” It also said that parties who do not intend to be bound by a preliminary agreement until a more formal document is signed should use language that says so.
Negotiating the offer
There is no formula that works in every market, and anyone who quotes a rule of thumb for how far above or below list to go is guessing. What does help:
- Read the listing instructions. If offers are due by a set time, submit before it, and ask whether the seller wants any particular terms.
- Make your terms easy to say yes to. A clear closing date, a strong pre-approval, and reasonable deposit amounts can matter alongside price.
- Use deadlines carefully. Short inspection and mortgage periods are attractive to sellers, but only if your inspector and lender can meet them.
- Escalation clauses raise your price in set increments over competing offers up to a cap. They can be useful, but the wording matters, so have it reviewed.
- Respond to counteroffers in writing and track which version is current.
The Purchase and Sale agreement
The P&S is the full contract. It is often built on a standard form (the offer in McCarthy called for the Standard Form Purchase and Sale Agreement recommended by the Greater Boston Real Estate Board), with additional terms negotiated by the parties’ attorneys. It typically addresses:
- How title will be conveyed and what happens if title problems turn up.
- The condition of the property at closing, including any agreed repairs or credits.
- Restated contingency deadlines, especially the mortgage commitment date.
- What happens to the deposits if either side defaults.
- For condos, documents from the association, including the certificate under M.G.L. c. 183A, § 6(d) showing unpaid common charges. Our guide to buying a condo in Boston goes further.
The offer sets the deadline for signing the P&S. If negotiations run long, get a written extension before the date passes rather than assuming it can slide. In McCarthy, the court found the seller had waived the deadline through her lawyer’s conduct, including continuing to negotiate after it passed without objecting, which is a reason to put any extension in writing.
From P&S to closing
After the P&S, the main work is the mortgage and the title. Expect these milestones:
From P&S to closing
- Mortgage commitment. Your lender orders the appraisal and underwrites the loan. Watch the commitment date in your contract.
- Title work. The attorney checks title and arranges title insurance.
- Closing Disclosure. Your lender must deliver it at least three business days before closing.
- Seller items. The seller must equip the home with approved smoke detectors on sale (M.G.L. c. 148, § 26F) and have the local fire department inspect the carbon monoxide alarms (§ 26F½), and pays the deed excise tax.
- Final walk-through and closing. You confirm the condition, then sign. The deed and mortgage are then recorded at the registry of deeds.
The time between P&S and closing is whatever the contract says; there is no statutory timeline. For a sense of what you will pay at closing, see closing costs in Massachusetts.
The role of attorneys
Massachusetts treats closings as legal work. The Supreme Judicial Court has said that an attorney must be involved in the closing of real property conveyances and must play a meaningful role (REBA v. NREIS, 459 Mass. 512 (2011)). In a financed purchase, the closing attorney is typically engaged by the lender. Buyers and sellers commonly hire their own attorneys to negotiate the P&S, explain the risks of each clause, and protect their deposits. Ask any attorney you speak with whom they represent in the transaction.
Mistakes to avoid
Ready to make an offer?
If you are getting close to writing an offer, The Pettengill Group can talk through terms, deadlines and the listing’s instructions with you before you sign anything. Start your home search or contact us to talk it through.