There is a classic scenario that happens with surprising regularity. The Buyer puts in their offer, it expires after a week. The Seller forgets about the offer and remembers it a few weeks later. The Seller reviews the offer and, lo and behold, it’s a fantastic offer and the market appears to be cooling off, so the Seller quickly signs the now-stale offer and sends it back to the Buyer with a smile; “We’re on for the sale of Property!” The Buyer figured that the deal was dead when nothing cut through the radio silence, so the Buyer moved on. The cooling market means the Buyer’s two-week old offer is now a mediocre one. The Buyer gets the message from the Seller on the stale, expired offer and immediately asks their agent, “Buyer’s Agent, are we actually under contract?”
The simple answer is: No.
When an offer expires, it is no longer valid, the contract is dead. Simply accepting the offer after the printed expiration date is insufficient. Oregon REALTORS® created a specialized form [Form 2.3 Late Acceptance Addendum] that acts as a pre-printed counteroffer, making a new offer that can be validly accepted.
What if the scenario changes slightly, and the Buyer actually wants to accept the offer? The Seller sends the one-week-past-expiration signed offer back to the Buyer and the Buyer turns to their agent and asks, “Can we still accept this contract?” The answer gets a little more complicated at this stage. Technically, no. Once an offer expires, it is dead and cannot be accepted; however, courts in various places [e.g. New York in Harris v. Reagan, 177 A.D.3d 1056 (N.Y. App. Div. 2010)] have found that actions of the parties after a contract expires creates an “implied contract.” This zombie-contract created through implication takes the form of whatever the parties are agreeing to do; even if that somewhat deviates from the original form of the agreement. In other words, we can pretend a contract exists because the parties are acting like one exists. If I reject your offer to sell me an apple for $1.25, then give you $1 and you hand me an apple, no court in the land will accuse me of theft; we have an implied deal.
Back in the real property world, if the offer expired, but then the Buyer and Seller proceed as though it weren’t expired, the parties may be operating with a dead offer, but there’s an implied contract that rises in place of the dead offer.
While that implied contract may sound great, ORS 41.580 is the statute of frauds and requires that contracts for real estate sales be in writing. If the contract violates the statute of frauds, the law considers that agreement void unless it’s put in writing somehow. So, in that case where the Buyer accepts the expired offer and the Buyer and Seller go skipping off down the road to sell that home; if one party has a change of heart at any point, e.g. Seller realizing they can make more money by putting the home back on the market; either party can shoot down the contract at any moment by pointing out the inherent flaw of the contract and the void nature of the agreement under the statute of frauds. There are arguments that subsequent amendments memorialize the agreement and put it into compliance with the statute of frauds, but those arguments are untested and not sound risk management advice.
If your offer is expired; use Form 2.3 to make it valid again. It keeps you compliant with the Statute of Frauds and stops potential arguments.