Offer to Purchase vs. Purchase and Sale: The Two Contracts in Every Massachusetts Deal

Massachusetts uses two contracts where most states use one. First the Offer to Purchase, a short document that is nonetheless legally binding once accepted. Then, usually about two weeks later, the Purchase and Sale Agreement — a much longer contract that supersedes the offer and governs the rest of the transaction.

Buyers moving here from other states routinely misread this. The offer looks informal because it is brief, so people sign it casually and assume the real negotiation is still ahead. It is binding. And the P&S is not merely a formality that follows — it is where the terms that matter get written, which is precisely why you want your own attorney involved before you sign it and not after.

What does the Offer to Purchase do?

It sets the essential business terms: price, deposit amounts, the closing date, the deadline for the inspection, the deadline for the P&S, and the financing contingency date. It comes with the initial deposit, often around $1,000.

Once the seller signs it, the property is under agreement and both parties are committed to the deal on those terms. What the offer does not do is spell out the hundreds of secondary provisions a real estate contract needs — title standards, risk of loss, what fixtures convey, remedies for default, extension mechanics.

What happens in the two weeks between?

Nearly everything that determines whether a deal survives.

• The home inspection happens in this window, and any resulting negotiation over repairs or credits.
• The buyer's attorney reviews and negotiates the P&S against the seller's attorney's draft.
• The buyer's mortgage application proceeds in earnest, and the appraisal is ordered.
• The seller's attorney begins assembling title and municipal documentation.

This period is short and the deadlines in the offer are real. Slow responses here cause more failed deals than disagreements over money do.

What should a buyer's attorney be negotiating into the P&S?

The provisions worth attention:

The financing contingency. It should give a realistic date for the written loan commitment, and it should return the deposit if the loan is denied after a good-faith application. Watch for language that narrows what counts as a denial.

Liquidated damages. Standard language typically limits the seller's remedy on a buyer default to retaining the deposit. Confirm it is capped there — without that cap, a defaulting buyer can be exposed to more than the deposit.

Extension mechanics. Deadlines slip for ordinary reasons: an underwriter asks for one more document, a title issue surfaces. The agreement should provide a workable way to extend in writing rather than forcing a crisis.

Title and condition standards. What the seller must deliver, and the condition the property must be in at the final walkthrough — including that systems are in working order.

What conveys. Appliances, window treatments, light fixtures, mounted televisions, generators. Disputes over these are common, petty, and entirely preventable.

What does 'under agreement' mean, and how is it different from 'contingent'?

In Massachusetts listings you will most often see Contingent and Under Agreement.

Contingent generally means an offer has been accepted but significant contingencies remain outstanding — commonly the inspection, or the signed P&S.

Under Agreement generally means the P&S is signed and the deal is further along, though the financing contingency may still be live.

Neither means the sale is guaranteed. Deals fall through after the P&S, usually on financing or appraisal. If you love a property that has gone under agreement, it is not unreasonable to ask your agent to keep an eye on it.

Do you actually need your own attorney?

Yes, and this is the single most common false economy in a Massachusetts purchase. The closing attorney is the lender's attorney — the buyer pays that fee, which is exactly why people assume that attorney represents them. They do not. Their client is the bank, and their duty is to make sure the bank's lien is valid.

A buyer's own attorney reviews the P&S, negotiates it, explains what is being given up, and is available when a deadline is about to be missed. Relative to the size of the transaction, the cost is small.

Sellers benefit from their own counsel too, particularly on estate sales, properties with septic systems, or any title question — an unresolved issue found late is far more expensive than one found before listing.

General information about Massachusetts practice, not legal advice.