The buy back agreement definition explains that when an item or property is purchased, the vendor agrees to repurchase said item or property at a stated price within a specified period of time if a certain event occurs. A buyback is a provision of a contract.

Buyback Agreements Defined

When a buyback takes place, it is because the seller has agreed in advance of a sale that he or she will repurchase an item of value from the buyer. The item of value may be equipment, real estate, insurance transactions, or another item.

The seller usually offers to repurchase an item to encourage the sale or to alleviate a buyer's concerns. A buyback usually has a set period of time or takes place under certain conditions.

The buyback provision may give the seller the right to repurchase the item under certain conditions. However, the seller is not obligated to do so.

Repurchase Agreement vs Sell/Buyback

Sell/buybacks and repurchase agreements function to serve as a means for the legal sale of collateral but act more like a secured loan or deposit. The main difference between the two is that the repurchase agreement is always in a written form of contract. A sell/buyback, however, may or may not be documented.

Documented repurchase agreements or sell/buybacks, recorded in a written contract, are legally stronger and more flexible than those that are undocumented. Because of a lack of documentation, the sale and repurchase are considered to be two separate contracts.

Without documentation between the parties, one party cannot legally enforce a margin call on the other party to eliminate differences that may have transpired in the cash or collateral value of the property or item. The exception to this only takes place on the first or last day of the transaction.

In the event that one party defaults, it is less certain that there will be the responsibility of mutual obligations due to no documentation setting forth the terms and conditions.

Some markets use the repurchase agreement frequently. Such markets include:

  • United States
  • United Kingdom
  • Switzerland
  • Belgium
  • France
  • Netherlands

Other markets, such as Spain and Italy, use sell/buyback agreements frequently and sometimes exclusively because of legal difficulties in those jurisdictions in regard to repurchase agreements and margining.

In the end, undocumented sell/buybacks are considered riskier than a repurchase agreement.

Real Estate Buybacks

Two scenarios exist within real estate-related seller buybacks. In the first scenario, the seller is protected by the seller buyback. In this situation, a seller, such as a developer, owns multiple properties and wants to preserve the pricing until all units that are under construction have been sold. When writing the sales contract or an option agreement, the seller will include language explaining that the property can be repurchased if the buyer does not either maintain the property or meet certain standards.

With the second scenario, the buyer is protected by the buyback provision. In this situation, the seller will often offer to repurchase at either the buyer's cost or at an inflated adjusted value.

For example, a buyer may be the first to purchase a home in a subdivision or condominium. Much of the housing around his home is still under construction. Because of this, the buyer has concerns about the value of the property and his investment. The builder will often make an offer to the buyer, stating that the property will be repurchased within a set number of years at the amount the buyer paid.

Situations other than real estate or insurance where buyback provisions are in effect usually involve business transactions. An example would be a franchisor selling a franchise to a franchisee.

In the buyback provision, a franchiser often includes that they have the first right to repurchase the franchise in the event the franchisee decides to sell. Another example is a manufacturer selling bulk inventory to a distributor. The distributor encounters financial difficulties and decides to terminate the contract. In this situation, if the manufacturer stipulates in the buyback clause that the distributor must sell the items back to the manufacturer, it eliminates the potential for the items to be liquidated or sold at reduced prices.

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