Is an offer to purchase binding in Massachusetts?

This is general information, not legal advice. Talk to a Massachusetts real estate attorney before you sign anything.

In many states, the first paper you sign is a soft “expression of interest.” Massachusetts is different. A signed Offer to Purchase (OTP) that names the property and the price — and that says it creates binding obligations — can lock both sides in before the longer Purchase and Sale Agreement (P&S) is ever drafted.

That is not a blog rumor. It is the holding of the Massachusetts Supreme Judicial Court in McCarthy v. Tobin, 429 Mass. 84 (1999).

What McCarthy v. Tobin actually held

John McCarthy and Ann Tobin signed a Greater Boston Real Estate Board OTP form. It described the property and the price. Above the signature line it printed: “NOTICE: This is a legal document that creates binding obligations.” Tobin signed “This Offer is hereby accepted.”

The form also said the parties would later execute a standard Purchase and Sale Agreement. Tobin’s side argued that meant nothing was binding until the P&S.

The SJC disagreed. It held that when the parties have agreed on the material terms — at least the property and the price — and the form uses offer-and-acceptance language plus a binding-obligations notice, the OTP itself is a firm contract. The later P&S is often a polished memorial of an already binding deal, not the moment the deal first becomes real.

The Court also held that Tobin had waived the stated deadline for signing the P&S by continuing to negotiate after that deadline. McCarthy got specific performance — the right to buy the house — even though Tobin had later accepted another buyer’s offer.

Takeaway for a buyer: do not treat “we’ll do the real contract next week” as a free look. If the OTP says it binds you, assume a Massachusetts court may enforce it.

What usually makes an OTP look binding

Every deal is fact-specific. Your attorney should read the exact form. Patterns that mattered in McCarthy and related cases include:

• A clear description of the property and the purchase price.
• Language that the buyer “offers to buy” and the seller “accepts.”
• A printed notice that the document creates binding obligations.
• Deposit, closing date, and other material deal terms filled in — not left blank for later.
• A plan to sign a later P&S that reads like a formality, not like “we have not agreed yet.”

If the parties truly do not want to be bound until a full P&S, Massachusetts courts have said they should use clearer non-binding language. Most weekend bidding wars do the opposite: agents circulate short OTPs meant to stick.

Binding does not mean “no way out”

A binding OTP can still include contingencies — conditions that let a buyer walk (or renegotiate) if something fails. Common ones:

• Financing contingency.
• Appraisal gap / appraisal contingency.
• Home inspection contingency.
• Title and survey review.
• Condo document review (for condominiums).
• Lead-paint inspection period for pre-1978 housing.

Contingencies only help if they are written into the offer before the seller accepts. Once accepted, adding new escape hatches usually requires the seller’s agreement.

Home inspection: you have stronger rights than many buyers think

Massachusetts now restricts sellers from forcing buyers to waive a home inspection just to get an offer accepted.

Under M.G.L. c. 143, § 101 and implementing regulation 760 CMR 74.00, a seller (or the seller’s agent) generally may not:

• Condition acceptance of an offer on the buyer’s agreement to waive or limit a home inspection; or
• Accept an offer from a buyer who has already signaled an intent to waive inspection — with limited exceptions (for example, certain family transfers and auctions, as defined in the statute and regulation).

760 CMR 74.03 also requires a separate signed disclosure affirming the buyer’s right to a licensed home inspection and a reasonable period to decide whether to proceed after the results. Full buyer-facing detail: Massachusetts home inspection waiver ban.

Practical point: an inspection contingency in the OTP still matters for timing, deposits, and how you exit. The statute and regulation protect the right to inspect; they do not rewrite every deposit or deadline clause. Read both with your attorney.

What a binding OTP does not replace

Even when the OTP sticks:

• It is not a home inspection. Inspectors look at systems and visible condition; they do not clear title, flood zones, MassDEP files, or condo association risk.
• It is not a title search or attorney opinion.
• It is not a condo document review. Special assessments and reserve problems often show up only in the association packet.
• It is not a lead-paint compliance plan. Pre-1978 homes have separate statutory notice and inspection rules under the Lead Law.
• Consumer-protection rules under M.G.L. c. 93A can still apply to unfair or deceptive practices — that is a separate conversation with counsel, not a free pass to ignore the OTP.

Copy-paste questions before you sign the OTP

Send these to your buyer’s agent and real estate attorney. Adapt them to the house.

1. Does this Offer to Purchase form state that it creates binding obligations? Quote the exact notice language.
2. Which contingencies are in the offer as written — financing, appraisal, inspection, condo docs, lead paint, title — and which deadlines apply to each?
3. What happens to my deposit if I terminate under each contingency? Who holds the deposit?
4. Is the seller (or listing agent) asking me to waive, limit, or “as-is with no inspection” language that would conflict with M.G.L. c. 143, § 101 / 760 CMR 74?
5. Has the required 760 CMR 74.03 inspection-rights disclosure been provided for signature?
6. For a condo: is there a document-review contingency long enough to read the master deed, budget, reserves, minutes, and 6(d) statement before I am locked past that review window?
7. Are any material terms left blank (parking, storage, fixtures, closing date, inclusions) that a court might still treat as “agreed” based on the rest of the form?
8. If the seller later claims the P&S deadline was missed, what written extensions or waiver language do we have?

How this ties to the weekend clock

Greater Boston deals often list midweek, show on Saturday and Sunday, and collect offers Monday or Tuesday. That is a short window to learn what you are buying. Because a signed OTP can bind you, the research that used to wait until “after we get the house under agreement” needs to move before you bid — or you need contingencies and professionals lined up the same day.

Every house has a catch. In Massachusetts, the catch that hurts most is discovering it after your signature already stuck.

If you are buying without a buyer's agent, the OTP still binds you the same way — see Buying a house in Massachusetts without a buyer's agent.

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