You have more than one offer on your home. Here is how the round usually runs in New York, what “highest and best” and an escalation clause actually do, what sellers compare besides the price, and where sales in Nassau, Suffolk and Queens have been closing against asking.
Short answer: “Highest and best” (also called “best and final”) is a request from the seller’s side that every interested buyer send their strongest terms by a set deadline. It is not a legal term and not a binding auction. An escalation clause is an offer that rises by a set step above any competing offer, up to a cap. In New York, an accepted offer is generally not binding: the sale becomes binding when a written contract is signed by both sides, so an accepted offer, escalated or not, ends as one fixed price written into that contract.
Where sales landed, November 2025 to October 2026: Nassau 48% above, 8% at, 43% below · Suffolk 57% above, 9% at, 34% below · Queens 21% above, 11% at, 68% below their final asking price. Every closed sale in the OneKey MLS, not a sample.
Why nothing binds until then: New York’s statute of frauds (General Obligations Law section 5-703) makes a contract to sell real property void unless it is in writing and signed by the party it is enforced against, and buyers and sellers here expect to be bound only by the formal contract. So until the written contract is signed, an accepted offer can generally still fall away from either side: the buyer can withdraw, and you can accept a different offer. That is why some sellers keep a back-up offer in view until the contract is signed.
Both phrases mean the same thing: the seller’s side asks every buyer who has made an offer to send their strongest offer by a set deadline. Neither is defined in New York law, and neither creates an auction with binding rules.
An escalation clause is part of an offer. The buyer names a base price and promises to beat any competing offer by a set step, up to a maximum. A clause normally has four parts:
Offer A is a flat $600,000. Offer B has a base of $590,000, rises $5,000 above any competing offer, and is capped at $625,000.
What this means in New York: because an accepted offer is generally not binding, the escalation happens at the offer stage. Once a price is agreed, the attorneys write a single fixed price into the contract. Some points the attorneys settle along the way:
No New York statute specifically addresses escalation clauses. A seller may accept or decline an offer that contains one; some sellers prefer to call for highest and best instead. Either way, the choice is the seller’s.
Each of these changes what can happen between the accepted offer and the closing. Which one matters most is your decision; these are the questions sellers usually ask of each offer:
The MLS does not record how many offers a home received, so these figures cannot say how often bidding happened. They report where every closed sale landed against its final asking price, by county and type, November 2025 to October 2026.
| Type | Above | At | Below | Sales |
|---|---|---|---|---|
| Single-family | 51% | 7% | 43% | 8,233 |
| Condo | 38% | 16% | 45% | 712 |
| Coop | 32% | 17% | 50% | 755 |
| All three | 48% | 8% | 43% | 9,700 |
| Type | Above | At | Below | Sales |
|---|---|---|---|---|
| Single-family | 59% | 8% | 33% | 10,927 |
| Condo | 43% | 15% | 42% | 1,550 |
| Coop | 48% | 13% | 39% | 398 |
| All three | 57% | 9% | 34% | 12,875 |
| Type | Above | At | Below | Sales |
|---|---|---|---|---|
| Single-family | 28% | 8% | 64% | 2,901 |
| Condo | 12% | 8% | 81% | 1,025 |
| Coop | 17% | 16% | 67% | 2,490 |
| All three | 21% | 11% | 68% | 6,416 |
* fewer than 30 sales in 12 months: a thin sample, read it as a rough figure. 2–4 family homes are not in this count.
| Closed in | Nassau above / at / below | Suffolk above / at / below | Queens above / at / below |
|---|---|---|---|
| Oct 2026 | 48% / 10% / 42% (911) | 57% / 8% / 35% (1196) | 20% / 12% / 67% (560) |
| Sep 2026 | 52% / 9% / 39% (909) | 63% / 8% / 29% (1216) | 21% / 9% / 71% (579) |
| Aug 2026 | 53% / 8% / 39% (1048) | 63% / 7% / 30% (1347) | 20% / 12% / 68% (570) |
| Jul 2026 | 55% / 8% / 38% (1046) | 65% / 8% / 26% (1350) | 23% / 11% / 65% (588) |
| Jun 2026 | 55% / 7% / 38% (880) | 59% / 9% / 32% (1151) | 21% / 13% / 66% (552) |
| May 2026 | 49% / 8% / 43% (715) | 59% / 8% / 33% (951) | 21% / 10% / 69% (433) |
| Apr 2026 | 45% / 8% / 47% (613) | 54% / 7% / 39% (831) | 21% / 11% / 68% (514) |
| Mar 2026 | 44% / 9% / 47% (649) | 52% / 9% / 39% (823) | 17% / 13% / 69% (513) |
| Feb 2026 | 41% / 7% / 52% (591) | 49% / 10% / 41% (804) | 19% / 11% / 70% (473) |
| Jan 2026 | 40% / 8% / 52% (748) | 51% / 10% / 39% (939) | 22% / 10% / 68% (554) |
| Dec 2025 | 46% / 9% / 45% (847) | 52% / 10% / 38% (1231) | 24% / 10% / 66% (599) |
| Nov 2025 | 45% / 9% / 46% (743) | 51% / 11% / 38% (1036) | 23% / 10% / 66% (481) |
Single-family, condo and coop together, number of sales in brackets. A sale closes about one to three months after its contract is signed, so each month reflects contracts agreed a little earlier. * fewer than 10 sales that month.
“At” = exactly the final list price. Shares are rounded, so they may not add to 100%. “Typical margin” = the median amount above asking among the sales that closed above it. The year-earlier comparison is called a change only when it is larger than chance would explain. The same counts appear on our low-appraisal guide.
How an escalated price, an appraisal-gap promise or a contingency is written into the contract decides what each side can rely on later. Joseph is also an attorney: when the terms of competing offers are in front of him, he knows the questions to ask about how each would read in a contract. As your broker he does not act as your attorney: your own attorney drafts or reviews the contract and advises you on its wording.
Joseph DeVito is a New York Licensed Associate Real Estate Broker and a New York attorney. He does not act as both broker and attorney on the same transaction: here he acts as a real estate broker only, and he is not your attorney. Real estate services provided through Keller Williams Realty Greater Nassau are not legal representation. Everything on this site is general information for educational purposes only. It is not legal advice, it creates no attorney-client relationship, and it should not be relied on as legal advice — for advice about your own situation, consult your own attorney.
It is a request from the seller’s side, usually sent through the agents, asking every buyer who has made an offer to submit their strongest price and terms by a set deadline. It is not a legal term and it does not create a binding auction: the seller may accept one offer, counter one or more, or ask again, and a buyer may choose not to change their offer. “Best” covers the whole offer, not only the price: financing, contingencies and the closing date are part of it.
In everyday use they mean the same thing: a call for each buyer’s strongest offer by a deadline. Neither phrase is defined in New York law, and calling a round “final” does not stop the seller from responding to the offers that come in.
The buyer offers a base price and promises to beat any competing offer by a set step, up to a maximum (the cap). The clause usually requires proof of the competing offer, such as a copy of its price terms. If there is no competing offer above the base, the price stays at the base. If a competing offer is above the cap, the clause stops at the cap. In New York the result is then written into the contract as one fixed price.
No New York statute specifically addresses escalation clauses. A seller may accept or decline an offer that contains one, and because the binding document is the written contract, the parties’ attorneys decide how the final price is stated in it. This is general information, not legal advice.
Generally, no. Under New York’s statute of frauds (General Obligations Law section 5-703), a contract to sell real property must be in writing and signed by the party it is enforced against, and buyers and sellers here expect to be bound only by the formal contract the attorneys prepare. Until that contract is signed by both sides, either one can generally still walk away, and the seller can still accept a different offer. Your attorney can confirm how this applies to your sale.
No rule requires a seller to accept the highest price. The seller weighs the whole offer, and the choice is the seller’s. The decision must not be based on any characteristic protected by federal, New York State or local fair housing law.
Only with the seller’s approval. Under the National Association of REALTORS® Code of Ethics (Standard of Practice 1-15), a REALTOR® discloses that other offers exist only with the seller’s approval. A seller’s agent in New York also owes the seller confidentiality as a fiduciary duty (Real Property Law section 443).
Before a contract is signed, neither side is generally bound, so a seller can accept a later offer. The NAR Code of Ethics (Standard of Practice 1-7) has listing agents keep presenting offers until closing unless the seller waives that in writing, and recommend that the seller get legal advice before accepting a later offer. Once a contract is signed, the seller is bound by it.
From November 2025 to October 2026, single-family, condo and coop sales closed: Nassau 48% above, 8% at and 43% below; Suffolk 57% above, 9% at and 34% below; Queens 21% above, 11% at and 68% below their final asking price, counted from every sale in the OneKey MLS. The MLS does not record how many offers a home received, so these figures show where prices landed, not how often there were multiple offers.
Last verified October 29, 2026. Contracts, lenders and local practice differ; your attorney confirms what applies to your sale.
If you have offers in hand or expect several, Joseph can lay out how each one compares on price, financing, contingencies and timing. The decision stays yours.
Every closed single-family, condo and coop sale in Nassau County, Suffolk County and Queens in the OneKey MLS from November 2025 to October 2026: 28,991 sales, compared with the year before. Each sale price is compared with the final list price, the price the home was listed at when it went to contract. A home listed twice and closed under both listings counts once. Sales whose recorded price is less than half or more than double the list price are left out as typing errors (62 over the two years). The month still in progress is never shown. Months of supply is the county market report’s figure.
Sale figures count closed sales in the OneKey MLS and change as sales are reported; they describe groups of sales, not any specific property, and are not appraisals or a judgment of any home's value or any offer. Joseph DeVito is a New York Licensed Associate Real Estate Broker and a real estate attorney; this page is general information, not legal, lending, tax, or individualized advice.
Based on information from OneKey® MLS, for the period November 1, 2025 through October 31, 2026.
Data courtesy of OneKey® MLS as distributed by MLS GRID, November 1, 2025 – October 31, 2026.
The DeVito Team of Keller Williams Realty Greater Nassau
Joseph DeVito, NY Licensed Associate Real Estate Broker
400 Garden City Plaza Ste 438, Garden City, NY 11530 · (516) 770-3782
