HOME BUYING
From Listings to Living
You found the house, but your own home is not sold yet. The seller agrees to an offer that depends on your sale closing, on one condition: they can keep showing the house. Three weeks later your agent forwards a notice. Another buyer has made an offer the seller accepted as a backup, and you have until Thursday to commit or step aside.
That is a kick-out clause at work. So what is a kick out clause in real estate, exactly? It is a provision, usually paired with a home sale contingency, that lets the seller keep marketing the property after accepting your offer. If an acceptable second offer arrives, the seller can notify you and require you to remove your sale contingency within a set window. If you do, your contract stands. If you do not, it ends, and your earnest money is usually refunded.
The Rhode Island Association of REALTORS describes its Sale of Buyer's Property Addendum as "also called a Hubbard Contingency or 'kick out' clause," with a default response window of 72 hours. Texas's standard form leaves the number of days blank. The clause is a negotiated contract term, so the window, the notice rules and what counts as a waiver all come from the paperwork you sign.
Leevli Editorial Team
Waiving changes your risk. If you waive and then cannot close because your home did not sell, you are generally in default, and the earnest money you deposited is exposed to the seller's remedies under the contract.
Many states rely on a form drafted by the local realtor association or on custom language. Two public examples show how much the details can differ.
| Term | Texas: TREC No. 10-6 | Rhode Island: RIAR Sale of Buyer's Property Addendum |
|---|---|---|
| What the contingency covers | Buyer's receipt of proceeds from the sale of a named property by a date | The buyer selling a home or other real estate |
| Trigger for the kick-out | Seller accepts a written offer and notifies the buyer that it requires a waiver | Seller gives notice requiring the buyer to waive |
| Response window | A number of days the parties fill in | 72 hours by default, or another agreed period |
| How the buyer waives | Written notice plus additional earnest money in an amount the parties fill in | Signed waiver plus proof of financing or funds that does not depend on the sale, or a signed contract for the buyer's home |
| If the buyer does not waive | Contract terminates automatically; earnest money refunded | Agreement becomes void; deposit refunded |
| If the buyer waives but cannot close because the home did not sell | Buyer is in default; seller may use the contract's default remedies | Set by the contract's terms |
The Texas Real Estate Commission's Addendum for Sale of Other Property by Buyer (TREC No. 10-6) makes the contract contingent on the buyer receiving the proceeds from selling another property by a date the parties choose, with a printed note that the date should be no later than the closing date. If the contingency is neither satisfied nor waived by then, the contract ends and the earnest money goes back to the buyer.
The kick-out sits in paragraph B. If the seller accepts a written offer, it must notify the buyer of that acceptance and that it requires a waiver; the buyer must waive by the day the parties wrote in, or the contract terminates and the earnest money is refunded. A waiver counts only if the buyer notifies the seller and deposits the additional earnest money stated in the addendum. The form adds that time is of the essence, meaning deadlines are strictly enforced. A buyer trading up in Austin should treat those two blanks, days and dollars, as real negotiating points.
The RIAR FAQ says the buyer generally has 72 hours to respond, or whatever period the addendum sets. To waive, the buyer delivers a signed waiver with a pre-approval or commitment letter that does not depend on selling the current home, written proof of funds to buy without selling, or a fully signed contract for the sale of the buyer's property. The original buyer does not have to raise the price. The FAQ also notes that a seller can replace one sale-contingent buyer with another, perhaps one whose home is already under contract. RIAR announced in October 2025 that it had folded the separate waiver notices into the addendum itself, so check the version your agent uses.
Your state may use neither approach. Ask your agent for the actual form before you write the offer.
Seventy-two hours is a common default, not a rule. Whatever the number, four details decide whether you can meet it:
The way to survive a short window is to prepare before the notice comes. Talk to your lender at the start about qualifying without the sale. Our guide to mortgage pre-approval covers what a letter proves and what it does not.
An illustrative case under the Texas form. A buyer offers $500,000 on a house in Houston's The Heights, contingent on selling their current condo, with $5,000 in earnest money. The addendum gives 3 days to waive and requires $10,000 in additional earnest money. Four weeks in, the seller accepts a backup offer and sends notice on Monday.
| Buyer's choice (illustrative) | Earnest money at risk | What happens next |
|---|---|---|
| Waive by the third day, deposit $10,000 | $15,000 | Contract continues; buyer must close even if the condo has not sold |
| Let the window pass | $0; the $5,000 is refunded | Contract ends; the backup buyer can move up |
Waiving only works if the buyer can carry both homes. Fannie Mae's Selling Guide B3-6-06, dated September 2, 2026, lets a lender leave the current home's full payment out of the debt-to-income ratio only with the executed sales contract for that home and confirmation that any financing contingencies have been cleared. Otherwise both payments count, including the condo's association dues, which is why HOA fees matter to your mortgage. If the home you still need to sell is a condo, resale documents and the estoppel certificate can slow that sale; our guide to how to sell a condo walks through the timeline.
Sellers agree to a sale contingency when the offer is otherwise attractive but depends on something they cannot control. The kick-out clause is what keeps that acceptance from taking the house off the market for weeks. It makes the most sense when:
Listing status affects how many second offers arrive. In New England's MLS PIN, Section 2.6 of the Rules and Regulations lets a listing stay "Active" when a kick-out clause is the sole contingency and the seller and listing broker have signed an Active Status Request Form; otherwise it shows as under agreement or, with a different form, contingent. A seller in Back Bay should ask the listing broker which status the listing will carry.
| Pros | Cons | |
|---|---|---|
| Buyer | Gets an accepted offer without selling first; earnest money usually refunded if kicked out; time to market the current home | Can lose the house on short notice; pressure to waive and carry two homes; inspection and appraisal money spent before a kick-out is gone |
| Seller | Accepts an offer while keeping the home available; can replace a weak contingency with a firmer deal | Fewer buyers want a backup position; the first deal may simply lapse at the contingency date; showings continue |
One buyer-side detail is easy to miss: waiving the sale contingency does not waive your other protections unless the waiver says so. Keep the inspection and appraisal terms in place; our guides to the property inspection waiver and the appraisal waiver explain what you give up when those go. Inspections still happen while a sale contingency is open, and our article on whether the seller should be present at a home inspection covers who attends.
The two are often confused because both involve a later offer. They work differently. A right of first refusal, as the California Lawyers Association's guide to rights of first refusal describes it, is a contract right to buy if the owner decides to sell and receives a bona fide offer from a third party; the holder can match that offer or decline.
| Kick-out clause | Right of first refusal | |
|---|---|---|
| Who holds it | The seller | Whoever the contract gives it to, such as a co-owner |
| Is there already a purchase contract? | Yes, with the first buyer | Not necessarily |
| What the other side must do | Remove the contingency on the original terms | Match the third party's offer |
| Price change required? | No, in the Rhode Island form | The holder must match the third party's offer to buy |
For buyers: ask for a longer window, written in days that exclude weekends if you can get it; keep the additional earnest money manageable; list exactly what proof counts as a waiver; and line up financing that does not depend on your sale before you sign. For sellers: ask the buyer to list the current home promptly, set a contingency date that fits your timeline, and require proof rather than a promise when the buyer waives.
A good agent will have used the form before; our guide to choosing a real estate agent for buying a house covers what to ask. Where the addendum is custom-drafted or the dollars are large, a real estate attorney in your state is worth the fee, and our guide to how much a real estate lawyer costs explains the pricing. Browse current listings, and ask residents on Ask a Resident how quickly homes nearby have been selling.
How fast your own home will sell, and how often sellers nearby accept contingent offers, is local knowledge residents tend to have.
Listings show the property, but they rarely explain the lived reality around it. On Leevli, a mover can explore the city, review neighborhood and building information, and ask a verified resident the specific questions that remain unanswered. That human layer helps readers know what to investigate before signing a lease, making an offer, or choosing between two addresses.
It is a term in a purchase contract, usually attached to a contingency on selling the buyer's current home, that lets the seller keep looking for other buyers. If the seller gets another acceptable offer, it can notify the first buyer, who must drop the sale contingency within a set time or lose the contract, typically with the deposit returned.
The seller delivers a written notice, and the 72-hour clock usually starts on delivery under the contract's notice rules. Within that window, the buyer must waive the home sale contingency in the required form, such as a signed waiver plus proof of financing. If the buyer does nothing, the contract ends. Check whether the window counts weekends and holidays.
Say a buyer offers $500,000, contingent on selling a condo, with $5,000 earnest money and a 3-day waiver window requiring $10,000 more. The seller accepts a backup offer and sends notice. The buyer can deposit the $10,000 and proceed with $15,000 at risk, or let the contract end and get the $5,000 back. These figures are illustrative.
When the best offer depends on the buyer selling another home and the seller does not want to stop marketing. It works best when the buyer's home is not yet under contract and the seller expects some chance of another offer. In a fast market, a seller may decline a sale contingency altogether; in a very slow one, a second offer may never come.
The main advantage is getting an accepted offer before your own home sells, with your earnest money usually protected if you are kicked out. The drawbacks are uncertainty, a short decision window, money already spent on inspections or appraisal, and the risk of carrying two mortgages if you waive and your home has not sold.
A right of first refusal lets its holder buy on the same terms as a third party's offer, so the holder must match. A kick-out clause belongs to the seller in an existing contract, and the buyer keeps the house by removing a contingency on the original terms. In Rhode Island's form, the buyer is not required to raise the price.
Usually, if the buyer simply declines to waive. Both the Texas TREC addendum and the Rhode Island association's guidance provide for the deposit to be refunded when the contract ends that way. The risk shifts after a waiver: in the Texas form, a buyer who waives and then cannot close only because the old home did not sell is in default.
Under the printed forms, the seller can act once it has another offer it is willing to accept, for as long as the sale contingency is open. Buyers can negotiate limits, such as a short period after signing during which the seller agrees not to send notice. Anything like that has to be written into the contract to count.
Your lender decides whether you qualify while still owning the current home. Under Fannie Mae's guide, the old home's payment can be left out of your debt-to-income ratio only with an executed sales contract and confirmation that its financing contingencies are cleared. Without them, you must qualify with both payments. Ask your loan officer before the notice arrives.
Waiting for the notice to start planning. Buyers who have not asked their lender whether they can qualify with two payments, or who lack the extra earnest money in an accessible account, often cannot meet a 72-hour window. Line up financing, funds and the paperwork the waiver requires on the day you sign the contract.
This article is informational and does not constitute legal, financial, tax or insurance advice.
