The contracts documents (prepared by lawyers and) used by brokers to  put together real estate purchasers are basically documents where blanks are filled.  These same documents, however, in the hands of creative brokers and agents can have a  flexibility that allows the deals to be structured differently to meet market conditions. 

This always a good form to keep the contract clean and uncluttered without strikeouts, and add-ins and all sorts of dates and initials on the original offer.

This form can also be used by Sellers where they have leverage in the market and want to ask Buyer’s to waive items.  Consider this clauses:

Using the Form 36 to extract Buyer waives is good from the listing agent’s point of view. Notice the offer is “open” for over ten days.  This gives the Buyer plenty of time to think about this counter-offer (e.g., time to do a pre-inspection, look at title, look over the Form 17) before entering into “mutual acceptance,” that is, being bound to a contract.

It’s good for Sellers because:

• Don’t run risk of going into the inspection phase of the transaction, then failing an inspection with the buyer terminating the contract and having to go back “active” on the listing service.  Buyers tend to be suspicious of homes that have been active, gone STI or into inspection, then returned to active.  The thought is that there must be something “wrong” with the home.
• Nice to have the waivers and fewer ways for Buyers to exit the deal.
• Could always withdraw the “counteroffer” if a better buyer came along.

Not so good from the buyer’s point of view.

• Never like to waive contingencies
• Hate to spend money on inspections or appraisals when don’t even if mutual acceptance.

We might see the Form 36 used to extract waivers where we have a sellers market, lower inventory in a price bracket and competition among buyers, read a market where multiple offers are the norm.

Real estate practice is as much “art” as science.