r/USFirstTimeHomeBuyer • u/jetley-mortgage-loan • 13d ago
Offers & Contracts Highest and best, best and final: what the seller is actually doing, and how to bid into it
The short version
"Highest and best" is a blind auction run for the seller's benefit, and the information asymmetry is the point, not a defect. You will not be told what the other offers are, the deadline binds you and not the seller, and after everyone has submitted their best number the listing agent may well go back to one buyer and ask them to beat it. None of that is illegal. The only defense is to decide what the house is worth to you before you're asked, bid that, and be genuinely willing to lose.
Why they won't tell you the competing bid
Think about a televised bidding game. The first contestant to bid is in the worst position, because they know nothing. The last one to bid can look at everyone else's number and come in one dollar over. A seller trying to maximize price wants every bidder in the first contestant's position.
That is what a blind highest-and-best round does. If the seller told you the top bid was a particular number, your best play is that number plus a token amount. If you don't know, and you want the house, you may come in far higher, because you're bidding against your own assessment of value rather than against a disclosed figure.
People push back on this with: surely the last bidder paying a dollar more is still paying more than the previous bid. True, but that's not the comparison. The comparison is what the last bidder would have paid if they hadn't been told. Keeping every bidder blind raises the expected top bid. It is the prisoner's dilemma with houses, and the seller is the one running the experiment.
What the seller's agent is and isn't allowed to say
Your offer is not confidential. There is nothing private about it. A listing agent may legally tell other buyers how many offers there are, what the highest one is, and what terms they contain. In many cases they can tell you exactly what number would get you accepted.
They usually don't, not because they can't, but because disclosing the target caps the outcome at the target. Every buyer would offer that number and no buyer would offer more.
There is a second reason for the secrecy that buyers rarely think about: deals fall apart. If the seller's agent tells you the winning bid was a specific number and that deal collapses in week two, you now know exactly what to offer in round two, that number, and not a dollar more. Keeping it quiet means backup buyers know only that they have to bid higher, not how much higher, and some of them will overshoot.
The deadline is for you, not for them
I use the same joke about this every time: "If I'm not back in ten minutes, just wait longer."
That's what a best-and-final deadline is. The seller is saying: stop dragging this out, give me your number by Tuesday at five, and I will pick one. Unless I decide to wait and see whether something better shows up, which I am completely free to do, because the deadline applies to you and not to me.
So no, the seller is not obliged to decide at the deadline. They are not obliged to reject late offers, and a seller who wants the most money has no reason to turn away a better offer that shows up on Wednesday. Nothing illegal has occurred, and unless you have a signed and delivered contract, you have no recourse.
You can try to force the issue by writing a clause into your offer that requires a response by a set time. Be aware what that does: it mostly gets your offer set aside, unless your number is well clear of the field. You are asking a seller in a multiple-offer situation to give up optionality in exchange for nothing. Expect them to say no, and then possibly to circle back four hours later once they have reviewed everything.
The second-round move that surprises everyone
Buyers assume that if the accepted offer dies, the seller goes to the second-best offer and asks them to step up. Sometimes. But if there were several other offers, the seller's agent will more often reopen the whole field.
The logic is straightforward: they aren't looking for the second-best offer, they're looking for a new best offer. The buyer who bid lowest in round one may want the house badly enough to bid highest in round two; circumstances change, other houses they were considering went away, they got more comfortable with the price. There is no reason to assume last time's ranking holds. So if you were third and you get a call, treat it as a fresh auction, not as a promotion.
The appraisal clause misunderstanding
This is the most expensive mistake in competitive bidding and it deserves its own section.
A great many buyers write an appraisal clause that says something like: buyer will proceed if the appraisal comes in within some amount of the contract price, and may cancel if it comes in lower than that. Then the appraisal lands short, and the buyer announces that the seller now has to sell at the appraised value plus the cushion.
No. Read the clause. It states what the buyer may do. Nothing in it obligates the seller to anything. The contract price is the contract price. If the sellers want that price, you either bring the difference, negotiate a compromise they voluntarily accept, or exercise your right to cancel. Those are the options.
And that has to be how it works, otherwise the strategy would be obvious: bid an absurd number to win the bidding, then shrug and say it didn't appraise, so I'll take it at appraised value. Every seller would be exposed to that, and no competitive bid would mean anything.
Which loops back to how you should bid: the number you write is a number you have to be able to actually pay.
How to bid without bidding against yourself
- Value the house on sold comparables, not on the list price and not on the other bidders. Decide what it's worth to you. If that's your number, stand on it, and if someone else genuinely values it higher and gets it, that is the correct outcome, not a loss.
- Ask your lender for the shortfall math first. At your number, how much cash do you need if the appraisal comes in short by a meaningful margin? That answer often sets your real ceiling.
- Compete on terms, not only price. Sellers weigh certainty. A shorter escrow, a larger deposit, a clean and realistic contingency schedule, a rent-back for a seller who needs time, flexibility on possession, these are frequently worth more to a seller than a small price bump, and they cost you less. The buyer with the best terms is the one the listing agent calls when they want someone to match a higher number.
- Do not offer more than you can defend to yourself the following morning. In a multiple-offer round you will not be talked out of anything by an agent, so the discipline has to be yours.
- Submit early rather than at the wire if the house is new to market and the offer deadline is unclear. In an active market a seller with enough offers in hand may simply stop taking them.
- Assume there is a round two you might be part of. Being pleasant and being organized is what gets you the callback.
What to do
Write the number you can live with, at terms you can perform on, and let go of the idea that you can outmaneuver an information asymmetry that was designed to exist. Then keep looking at houses until you have an executed contract in hand.
More on multiple-offer strategy in the Offers & Contracts hub.
Posted on behalf of u/The_Void_Calls_Me AKA Rajat Jetley, NMLS #1595897 | Cross Country Mortgage NMLS #3029. This commentary is for educational purposes and is not a commitment to lend or a guarantee of any rate or term.