THE NEW RULES.

---

NEW 2026 - Independent consideration.

NEW 2026 – NONREFUNDABLE INDEPENDENT CONSIDERATION (IC)

New to the New Mexico real estate market this year is a concept called Independent Consideration (IC). IC is a nonrefundable amount that a buyer includes with their offer. If the seller accepts the offer, this amount is not refundable for any reason, unless the seller breaches or terminates the contract.

NOTE -Independent consideration is generally not extra money for a seller it’s usually in lieu of the some of the purchase price. Example: If a Seller is asking $500000, a buyer may offer $495000 and $5000 independent consideration (IC) still totaling $500000 for the seller. But unlike EM, the IC is nonrefundable if the buyer backs out. 

IC vs. Earnest Money (EM)

Independent Consideration differs significantly from Earnest Money. Earnest Money is typically refundable if contingencies fail during the objection period—for example, if the home does not appraise, the inspection reveals major issues, insurance cannot be obtained, or the buyer decides to withdraw due to unacceptable observation. In contrast, independent Consideration is not refundable under any circumstances (except seller breach or seller termination). NONREFUNDABLE

Buyer beware – IC does not go towards your down payment or closing costs, EM does. – However, you can use IC to lower your offer price.

How to Use IC to make your strongest offer

For Buyers:
How to use independent consideration to make a strong, competitive offer, consider offering a larger IC amount while reducing your purchase price by the same amount. This keeps the seller’s net proceeds the same but provides reassurance that you are committed and unlikely to walk away. We suggest.

1) Buyer -  Decide what amount you could offer for the home. Ex Value = $500000.

2) Offer 1% Independent Consideration. Ex: $5000.

3) Offer value minus the independent consideration (Ex $500000-$5000 = $495000.)

4) Offer minimal Earnest money (EM) $100.

The owner nets the same amount but will be more assured the buyer isn’t going to back out because while EM is refundable the IC isn’t.

Buyer be aware NONREFUNDABLE MEANS NONREFUNDABLE.

1) If the buyer cannot qualify for the loan the IC is NONREFUNDABLE.

2) If the buyer cannot get insurance the IC is NONREFUNDABLE.

3) If the home does not appraise high enough for the lender the IC is NONREFUNDABLE.

4) If the buyer has an inspection done and it is bad the IC is NONREFUNDABLE.

NONREFUNDABLE MEANS NONREFUNDABLE, be sure you want the home.

SELLER & BUYER -  How to make higher IC Make Sense for buyers. Reduce the buyer’s risk.

Buyers are often more willing to offer higher IC when the seller has completed pre-listing inspections, reducing some uncertainty for the buyer about the property’s condition. 

Sellers who do not do a prelisting inspection should not expect a buyer to bear the risk of a poor inspection and will offer lower IC. Sellers help reduce the uncertainty of the unknown by having a pre listing inspection done.

For Sellers: Focus on Net Proceeds

When evaluating offers, look beyond the purchase price and consider your net outcome.

· Higher IC makes an offer stronger . A buyer offering low IC can more easily tie up your property and later back out with minimal loss. 

• A buyer offering high IC, with      lower purchase price, is less likely to walk away because they have more      at risk. 

Stay Within the “Four Corners” of the Contract

Once the contract has been accepted, if a seller is open to entertain additional buyer inspections, or contractors coming in for “informational purposes only” beyond the contract’s inspection/objection deadline, we recommend an amendment of a high nonrefundable IC adjusting the purchase price to compensate for the additional IC. Why?

Requests to inspect or access the property outside the contract terms often signal a desire to renegotiate or a lack of commitment. If inspections are waived or are beyond the inspection deadline or requested for “informational purposes only”, any additional evaluations should occur after closing, these should have been done during the contract’s inspection/ objection” period”. A high IC will be more difficult for and uncertain buyer to walk away from.

2024 -From The National Association of Realtors 

The NEW RULES FOR REALTORS -THE BOTTOM LINE –

1) SELLERS WILL PAY THEIR LISTING BROKER. ( Atomic charges $599 +1.5% to list your home.)

2) BUYERS MUST HAVE A WRITTEN AGREEMENT WITH A BROKER TO BE SHOWN OR MAKE OFFERS ON HOMES.(Unlike some brokerages Atomic's agreement does not "lock you in" you can leave us at any time. read our agreement under the "buyer's" tab.)

3) BUYERS WILL HAVE A WRITTEN AGREEMENT AS TO WHAT THEY PAY THEIR BUYER’S BROKER – SOMETIMES THE BUYER WILL ASK FOR  A SELLERS CONCESSION  TO PAY THIER BROKER, SOMETIMES FROM THEIR OWN FUNDS.

Sellers -With Atomic you pay a $599 " transaction engagement fee" at the time of listing with us (this fee is non-refundable whether the transaction closes or not.) This fee is for our time of engaging the transaction. Meaning this covers our time for managing the parties, paperwork, taking photos, videos, sign placement and all the other necessary functions.  And at closing you pay 1.5% for all of our other efforts  Your total to Atomic is $599 +1.5%.  We are upfront about what we do for you. No vague or ambiguous promises, just performance. 

TO BE CLEAR,  while Sellers will no longer be directly offering the Buyer’s broker a commission on the MLS and the Buyer's will be paying their own Broker, the Buyer may request a Seller’s "concession"  and/or the Seller may offer a "concession"   to pay the Buyer's broker.  We believe this will be common. (often in the 2-3% range)

A with atomic a seller’s concession MUST be asked for by the Buyer in their “offer to purchase”, (NMAR form 2301) because both the bank and title company need to be aware any concessions and the purchase agreement is where this occurs.

Lastly, the client (Buyer) may want to pay their Broker (The Buyer’s Broker) a fixed fee or a percentage of the listing price commission at closing out of the buyer’s personal funds for the Buyer Broker's services.Thus their will be no request for concessions.