Home sellers have made a killing over the past year, as buyers outbid one another on practically every property that comes to market.

In fact, sellers have made so much money -- in some cases, hundreds of thousands over their original asking prices -- that some homeowners might be tempted to test the waters and put their places up for sale. They don't really have any intention to sell, unless the offers they receive are outrageous. They just want to see what their homes might be worth.

In June, new listings increased almost 11% from May and 5.5% year-over-year. Undoubtedly, some were serious sellers. But others likely wanted to see what the market would bear, just for the fun of it.

If that's your modus operandi, you might want to think twice. You may not be forced to sell if you really don't want to, but you could be on the hook for a 5% or 6% sales commission -- whether you sell or not.

At play here is an often-unnoticed clause in most listing agreements, which essentially says that if the agent brings a legitimate buyer to the table who offers to match your selling requirements, said agent is due his or her commission.

All real estate is local, so the rules differ from state to state. But here's what a listing contract says in Louisiana:

"Seller agrees to pay broker professional brokerage fee ... if the broker locates a prospect ready, willing and able to purchase or exchange for the property and the Seller refuses to complete the transaction after all terms and conditions have been met by the prospect."

According to realty professionals I've spoken with, the clause is rarely, if ever, enforced. The Louisiana agent who provided the above says that in her three decades in the business, she's never seen anyone sue a consumer over this clause.

A Maryland agent agreed: "Technically, they earned their commission, but most agents just move on."

Maybe so, but the question remains: If nobody pays attention to the "ready, willing and able" clause, why is it still part of the listing agreement?

Perhaps it's because if agents want to play hardball, they can -- especially if they believed you were a serious seller when you signed up, not just a tire-kicker.

"These provisions are binding and enforceable in a civil court," said Kinski Moss of the Texas Realtors. But she, too, is unaware of any instances where it has been invoked.

Still, savvy sellers -- or just curious owners -- should make sure the clause also includes a sentence or two stating that the commission is payable only if the property actually sells or a change in the title occurs. "Without that (protection)," said another agent, "you might have to pay."

Adrese Roundtree of the California Regional Multiple Listing Service says the MLS has received only two or three reports of the clause being violated in the last six years. But even if the agent moves on without suing, he or she is obligated to report the clause violation to the listing service.

Consequently, you may end up with a black eye, as far as agents in your area are concerned. Hundreds of agents who participate in the MLS will be notified that you reneged and refused to accept a written offer satisfying the terms and conditions stated in the listing.

That would put all other realty professionals on notice that you don't follow through on your promises. And presumably few, if any, other agents would be willing to list your place when you really do want to sell.

Another possibility: You might run into an unscrupulous listing agent, such as the one reader Keith Falkner did some years ago in Sarasota, Florida. The agent suggested that if Falkner offered exactly what the seller was asking, he would be forced to sell. But even if the seller declined, which the agent knew he would, he would be required to pay the agent's commission.

Falkner demurred, and warns other sellers not to fall into this kind of trap.

While we're discussing legal issues, let's talk about buying a house sight-unseen. Doing so is certainly not a new phenomenon, but the practice took off during the pandemic. However, agents could be in legal trouble if a buyer determines the place didn't meet his or her expectations after all and decides to sue.

"Disappointed purchasers may bring claims" against the listing agent, their own agent, or both if they discover a "previously unidentified defect or other undesirable feature," Deanne Rymarowicz, associate general counsel of the National Association of Realtors, warned NAR members recently.

She advised agents to reveal to would-be buyers all known material defects and avoid any misrepresentations or exaggerations. In a listing, it's OK to enhance the color of the lawn, she said, but not to airbrush out power lines that run across the backyard. And while it's not an agent's job to look for hidden defects, they must report those of which they are aware.

That's why some listing agents don't want to see any inspection reports made for the seller or for would-be buyers who, who after reviewing the inspector's findings, decided not to proceed. If the agent or the seller-client doesn't know what the report contained, their reasoning goes, they have no obligation to report what's in it.

In other words, they get to play ignorant. Which is just one more reason for every buyer to hire their own independent home inspector.

"Who would have been dumb enough to buy a house based on a temporary situation?"

That question was recently posed on Inman Coast to Coast, a public real estate discussion group on Facebook. The answer, of course, is "lots of people." And now that the country is reopening and some companies are calling their employees back to the office, more than a few pandemic-inspired buyers are having a change of heart.

Christopher Paul of Keller Williams Realty in San Diego told the group his team has lost two deals in recent weeks: One buyer dropped out because his employer "abruptly changed" its work-from-home policies, while the other was a seller who was told he needed to be in the office more frequently.

Similarly, Todd Schroth of eXp Realty in Orlando had a buyer cancel a contract because his company suddenly wanted employees back in person. And Maui agent Kinga Mills of Hawaii Life had a cancellation shortly before closing because her buyer's New York employer decided it "wanted everyone back in the office. Totally screwed my client."

This shift in thinking is hardly universal; numerous agents posted that they haven't noticed any recent slowdowns because of employment issues.

Vija Williams of Keller Williams hasn't seen it yet in her Seattle market. Ditto for Joy Triglia of Better Homes and Gardens in Fort Lauderdale, Florida. Mortgage specialist Jeff Chalmers of the Mortgage Network in Danvers, Massachusetts, hasn't seen any slowdown on the financing side, either.

While a large-scale "return to the office" movement hasn't materialized, some companies have clearly called their people home.

"If you can go to a restaurant in New York City, you can come into the office," Morgan Stanley CEO James Gorman said in June. "If you want to get paid New York rates, you work in New York."

Other outfits -- Amazon, Nationwide and American Express, among others -- are allowing most of their employees to work from home. Still others have settled on a hybrid schedule where people work in the office a few days a week and at home on the other days. And some companies are still trying to figure out what to do.

According to poll last month by trade publication Commercial Property Executive (for which I occasionally write), nearly two-thirds of a collection of realty firms, consultants, building owners and developers said their teams will be offered a hybrid schedule. But 35% said their entire workforces will return to the office full-time.

The Building Owners and Managers Association found similar results when it queried tenants in the spring. Nearly 8 out of 10 "decision-makers" told BOMA that physical offices are vital to their businesses.

Perhaps that's why the buying frenzy in the metro Detroit area is on the wane, offered Brandon Kekich of RE/MAX Dream Properties. "People have changed their minds because of COVID drying up around here, and the Big Three (automakers) letting them know that the flex schedule will not last forever," he posted to the Inman discussion group.

The employment factor was in play in a recent Fannie Mae survey, in which nearly two-thirds of respondents believe now is a bad time to buy and more than three-quarters said it's a good time to sell. And concern about job security was elevated, even though more people expressed "greater confidence about their household income and job situation compared to this time last year," said Fannie Mae Chief Economist Doug Duncan.

In Northern California, Tim Freeman of Vanguard Properties in Petaluma is working with a buyer who was searching for his "forever home" -- one where he could live out his years. But the client recently changed his mind, and is now looking instead for a weekend retreat in wine country. Why? Because of "a change in work-related attendance," said Freeman in the discussion group.

In Southern California, Angelique Kenney of Jason Mitchell Real Estate said she's see "lots" of canceled deals. "The market is correcting itself," she said. "It's gonna be happening more."

Matt Rillera, who works for the EntreTec consulting firm, said two of his family members recently canceled deals. One was in Louisiana and the other was in Sacramento, but both were tied to abrupt changes in the relatives' work-from-home options, he said.

In Hawaii, Julie Chancerelle Ziemelis of MoveToHawaii365.com said, "People here are hoping that folks who bought homes (in the islands) during the pandemic, in the hopes of working from home for the foreseeable future, will be called back so we have more inventory!"

Sometimes, though, one person's change of heart is another's good fortune. In Dallas, Nicole Arenas of Keller Williams lucked out -- or rather, her client did -- when a buyer had to terminate an offer. The original buyer's company was returning to the office three days a week, and he would no longer be allowed to work remotely.

The location no longer worked for that buyer, but it did for Arenas' buyer, who went under contract and closed on the deal.

"It ain't over till it's over." -- Yogi Berra, baseball philosopher

In real estate, a house isn't sold until the Fat Lady sings at the closing. Until then, the seller should keep their options open by accepting backup contracts. Likewise, a buyer whose bid for the property fell short should consider asking the seller to accept their offer as a backup.

Simply put, a backup contract is one that moves into the primary position if the first buyer does not close. Some agents disdain them, but others love them.

Years ago, California agent Janine Nielsen's client wasn't just a backup -- he was in 10th position on a short sale, and his offer was $50,000 below the accepted one. But a year later, the sale still hadn't closed, everyone else had dropped out and Nielsen's buyer won the day.

For a variety of reasons, roughly 20% of all sales fall through. Maybe the place doesn't appraise at the hoped-for value, and the buyer can't or won't make up the difference. Perhaps the inspection reveals daunting flaws, or maybe financing falls through.

Or perhaps the buyer realizes they acted too hastily in an overheated market. Denver broker Joan Cox, who always encourages her agents to write backup offers, says that in a seller's market, emotions often run high and decisions are made too quickly. After a day or two, hasty would-be buyers recognize they acted with their hearts, not their brains.

While sellers cannot accept other contracts while one is still active, they can continue to market the property and accept offers, as long as those buyers are told they are in a secondary position.

Having standby buyers puts sellers in a stronger position. It places additional pressure on the first buyer to keep the original contract terms in place, and it saves sellers from having to put their homes back on the market.

For buyers, the odds aren't terrific; a 20% chance of the first deal collapsing can seem like a long shot. But if you absolutely, positively want the house and are willing to wait, a backup offer makes sense.

To protect yourself, backup offers should be worded properly. Some states have standard backup addendums to cover these situations, but it may be a good idea to call in an experienced real estate attorney.

What follows is not intended as legal advice, especially since laws differ across the country. Rather, it is derived from what I've learned from numerous agents:

-- Get it in writing. Too many sellers and agents play it too loose. A vague agreement to "hold" your offer as a backup holds no legal standing. "A backup offer is only a true backup if signed by the other party," advises Phoenix agent Lynn Behlendorf.

"Whatever good intentions the listing agent and seller have towards giving you a verbal agreement," adds Maui agent Ralph Gorgoglione, "I guarantee there will most likely be another buyer willing to trump your verbally accepted offer."

-- Be careful not to be locked in, at least not entirely. The idea behind a backup is that the terms and conditions are already agreed upon, and your offer will proceed to escrow without any further negotiation. But try to give yourself an out.

While you're never totally tied into a deal, give yourself some time to cancel. The seller will (rightfully) want to limit your wiggle room, so 48-72 hours should be enough time to make up your mind. Sellers, on the other hand, should ask for a stipulated waiting period that, if exceeded, voids the offer.

Buyers also need to be careful they don't tie themselves into numerous backup contracts on different properties. Otherwise, they could find themselves being forced to go to closing on more than one.

-- Cancel in writing. If you do decide to move on, notify the seller and their agent in writing and demand a signed response that lets you out of the transaction. Ditto if you resolve to proceed: Make sure the first offer is canceled -- again, in writing, signed by both parties.

-- If the house didn't appraise for the first buyer, it probably won't for you, either. So you can try to renegotiate as best you can. Perhaps the seller will agree to lower the price.

The same goes for the home inspection: Once problems have been uncovered, you must be informed of them. If the first buyers had an inspection, the seller must inform you of the findings if they were made aware of them. Consequently, the seller might be convinced to bargain based on the necessary repairs.

At the same time, in a market where prices are rising almost constantly, the seller may demand that you up your offer. But most will be satisfied there's another contract waiting and that they can move on with their lives.

Indeed, if the seller already has a new home and needs to move forward, they're more likely to bargain than to play hardball.