Can a seller accept a buyer’s offer after a listing agent makes a counteroffer in a text message?
QUESTION: One of our listing agents received a written offer from a buyer on Form 2-T (Offer to Purchase and Contract). The listing agent countered the offer in a text message to the buyer’s agent and stated that our seller would only accept an offer with a much higher Due Diligence Fee. The buyer’s agent said the buyer would consider it. Two days later, the seller decided to go ahead and sign the buyer’s original offer, and directed the listing agent to send the signed contract to the buyer’s agent. The buyer says there is no contract because the seller “killed” the original offer when the listing agent sent the text containing the seller’s counteroffer. Do we have a contract?
ANSWER: No, we do not believe a contract was formed under these facts.
Under North Carolina law, an offer can no longer be accepted after it has been rejected or countered by the person receiving it. See, for example, Normile v. Miller. The same is true of counteroffers, which can also be rejected or countered themselves. A rejected or countered offer must be submitted again to renew the ability to accept it.
Real estate brokers have authority to communicate offers, counteroffers, and even rejections of offers. See N.C.G.S. § 93A-2(a). Under the law of agency, these kinds of communications by agents are ordinarily binding on their clients, because the clients are directing their agents to communicate their desires and intentions. Note, however, that a real estate broker’s authority to communicate offers, counteroffers, and rejections is not the same when it comes to acceptance of an offer. In most cases, a real estate broker does not have the authority necessary to bind their client to a real estate contract, which we have written about here and the NC Court of Appeals addressed in Manecke v. Kurtz.
In this case, when the listing agent countered by text, it terminated the buyer’s original offer. It could no longer be accepted. Even though the seller later changed their mind and signed the buyer’s written offer, that offer was already “dead.” For a binding contract to exist, the buyer would have needed to re-submit or re-sign the original offer after the counter was made.
The North Carolina Real Estate Commission addresses this topic in Chapter 11 of the North Carolina Real Estate Manual, and the Commission cautions agents to be careful in their communications. If, for example, a seller wanted to keep a buyer’s offer open, but also make inquiry about whether the buyer would negotiate certain terms, then a listing agent must be clear that the seller is: (1) considering the buyer’s offer; (2) neither accepting, rejecting, or countering the offer; and (3) wanting to know if the buyer is willing to negotiate on items x, y, or z. This kind of communication still carries some risk that a buyer would interpret the listing agent’s inquiry as a counter or rejection even if it is not, but if done well, it may give the seller the flexibility they seek if they do not want to lose the offer as given. Listing agents should still caution their clients that making such an inquiry to negotiate may, at a minimum, cause the buyer to withdraw their offer.
The Commission recommends that to avoid confusion, agents should make sure that all offers and counteroffers are made and responded to in writing. Consider using the Response to Buyer’s Offer (Standard Form 340), which clearly states that the seller is rejecting the buyer’s offer and proposing new terms. The form also makes clear that the buyer must submit a new, signed offer for the seller to consider and decide whether to accept or counter again. Even if the new offer exactly matches the seller’s prior counter terms, the seller remains free to reject or respond with further revisions.
It should finally be noted that cases like this are very fact specific, and the ultimate determination of whether an offer was countered or rejected could, quite literally, depend on a few words exchanged between agents. If a buyer and seller cannot agree on whether a contract was formed, then they should immediately seek legal counsel to be advised of their options.
Release Date: 10/30/2025
This article is intended solely for the benefit of NC REALTORS® members, who may reproduce and distribute it to other NC REALTORS® members and their clients, provided it is reproduced in its entirety without any change to its format or content, including disclaimer and copyright notice, and provided that any such reproduction is not intended for monetary gain. Any unauthorized reproduction, use or distribution is prohibited.