A mortgage contingency allows homebuyers to exit the purchase contract without legal repercussions should they be unable to secure financing by the agreed-upon deadline.
Consider this scenario: You found a gem of a home that many others are eyeballing. You make an offer and cough up earnest money to show that you mean business. You’ve been preapproved for a mortgage, so financing seems a shoo-in — until you hit a snag. That’s when a mortgage contingency becomes important.
If you’re unable to obtain financing by the deadline, you can walk away from the purchase agreement and have your earnest money returned.
Some non-cash buyers consider waiving the mortgage contingency to make their offer more competitive in a hot market, but of course, that involves risk. Here’s the scoop on the financing contingency.
What Is a Mortgage Contingency?
Should something unexpected happen, like a job loss or the inability to sell an existing home, a mortgage contingency clause in the purchase agreement allows buyers to back out of the contract and have their earnest money returned. An earnest money deposit isn’t small potatoes for anyone, but that’s especially true for those who are competing against multiple offers: Buyers might lay down as much as 10% of the home’s sale price as a good-faith deposit.
A mortgage contingency also protects both buyers and sellers from uncertainty in the real estate transaction. It’s one of several contingencies that buyers might include in the contract when the property listing status changes to contingent but not yet pending.
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The Mortgage Contingency Clause
The mortgage contingency clause gives the buyers a time frame to go shopping for a mortgage or move beyond preapproval. Though the clause may vary from contract to contract, most will allow buyers to back out of the contract if they do not directly cause the financing to fail. The earnest money held in escrow is returned to the buyer.
Even when buyers have mortgage preapproval, financing can fall through at the last minute. This is the legal “out” if that happens.
Recommended: What Is the Difference Between Pending and Contingent Offers?
How Mortgage Contingency Works
Buyers find a home and make an offer and the seller’s real estate agent or attorney draws up a contract for the purchase of the property. Many buyers include in their offer a mortgage contingency, which has a deadline. If the sellers agree to this contingency (and other conditions of the offer), they sign the contract. The mortgage contingency becomes legally binding at this point.
Next, buyers complete a full application with the lender of their choice. The lender will review the buyer’s finances in-depth, and mortgage underwriting will make a final decision on whether or not to approve the loan.
If the mortgage is denied, the buyers are able to exit the contract and have their earnest money returned when a mortgage contingency is included.
In the absence of a mortgage contingency, the sellers would be able to keep the buyers’ earnest money and put the property back on the market to find another buyer.
How Long Does a Contingency Contract Last?
When buyers submit an offer, they will suggest a deadline for mortgage financing alongside the mortgage contingency. Typically, the time frame to secure a loan is 30 to 60 days.
Mortgage Contingency Clause Elements
Some mortgage contingency clauses are simple and give the buyers absolute discretion in obtaining financing acceptable to them. In others, financing is more specifically described. This variance depends on your contract and state law. Elements can include a mortgage contingency deadline, type of mortgage, amount needed, closing fees, and interest rate.
Mortgage Contingency Deadline
The mortgage contingency deadline is how long the buyer has to find approval for a mortgage. The deadline is often suggested by the buyer in the contract when an offer is made on the property.
When the seller signs the offer, the contingencies become legally binding and must be followed in good faith. Should a buyer need an extension of the deadline, an addendum must be submitted to and agreed upon by the seller.
Type of Mortgage
There are many different types of mortgages a buyer can use to purchase property, so while one loan may not work for a buyer’s situation, another may. Buyers may have the option of selecting a conventional or government-insured loan, a jumbo loan, a mortgage with a term of 30, 15, or other years, or an interest-only mortgage. A lender can help walk buyers through their options.
Amount Needed
A mortgage contingency clause can also designate the amount needed to secure the loan. A mortgage calculator tool can help buyers estimate how much a mortgage payment is going to be and the total amount a borrower can qualify for.
Closing Fees
The mortgage contingency can stipulate what closing fees and mortgage points are acceptable.
Maximum Interest Rate
An interest rate can be specified that the lender must provide before the mortgage contingency is satisfied. This makes it so the buyer can back out of the contract if the costs are too high.
Can You Waive a Mortgage Contingency?
Yes. Mortgage preapproval can help make your offer more competitive, but you may still waive the mortgage contingency. In that case, your earnest money is at risk, and you’re not able to renegotiate the contract if the appraisal comes in low. Keep in mind that FHA and VA loans do not allow buyers to waive the appraisal (which is an important part of the financing contingency).
Reasons to Waive a Mortgage Contingency
There are some scenarios where it doesn’t make sense to include a mortgage contingency in the contract:
• When the buyer is able to pay cash for the property. Cash buyers do not have to include a mortgage contingency.
• When owner financing is involved. If the current owner of the home is financing the sale, buyers do not need to include a mortgage contingency.
• When competition is extremely high. It might be a good idea to look at this option as a last resort, but in a market where sellers only accept offers without contingencies, this could be a buyer’s only way to win the contract.
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Other Common Types of Contingency Clauses
The financing contingency isn’t the only common one in a contract. Some others are:
• Inspection contingency. This is a contingency that allows the buyer to exit the contract should the property fail a home inspection.
• Appraisal contingency. This contingency is connected to the financing contingency. Should the property fail to appraise for the amount needed to finance the loan, the buyer would have the option of renegotiating or dropping the contract.
• Title contingency. A property needs to be free of title defects for the sale of the property to go through.
• Sale of home contingency. This contingency allows buyers to sell their current home before completing the purchase of a new home.
Recommended: How to Read a Preliminary Title Report
The Takeaway
A mortgage contingency protects homebuyers’ ability to get their earnest money back if financing falls through. Waiving the mortgage contingency in a hot market could put some house hunters at the front of the line, but it’s a risk only those feeling confident in their financial situation should take.
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FAQ
Can you waive a mortgage contingency?
Yes. Even if you need to obtain financing, waiving the mortgage contingency is an option.
What does no mortgage contingency mean?
No mortgage contingency means that buyers are willing to take on the risk of losing their earnest money if they are unable to secure financing by the closing deadline.
Should you waive mortgage contingency?
Homebuyers willing to take the risk of losing their earnest money to the seller to better compete are best poised to waive the mortgage contingency. Buyers who are not willing to risk their earnest money should not waive the mortgage contingency.
How long does a mortgage contingency usually take?
A mortgage contingency is usually set between 30 and 60 days.
Photo credit: iStock/kate_sept2004
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