What is a notice to perform?

A notice to perform is a written demand from one party to the other requiring action within a set time, most often used by a seller to make a buyer waive a contingency that is holding up the sale. In Washington it is delivered on NWMLS Form 22AR, and if the buyer does not respond within three days, the seller may terminate the agreement.

How does a notice to perform work in Washington?

It exists to solve a specific problem: a contract that is technically alive but going nowhere.

A buyer is under contract with a financing contingency. Weeks pass. The lender has not issued approval, the buyer has not waived the contingency, and the seller has a home off the market with no certainty about whether it will ever close. The seller is stuck, and every week costs them market momentum.

The notice to perform ends the ambiguity. The seller delivers Form 22AR, formally asking the buyer to waive the financing contingency. From there the buyer has three days to respond.

If the buyer waives, the contingency is gone and the contract continues without that exit.

If the buyer does nothing, the seller may deliver a Notice of Termination and end the agreement.

Either way the seller gets an answer, which is the entire purpose.

Which NWMLS form is used?

Form 22AR is the form for this in Washington, and it works alongside Form 22A, the financing addendum, which creates the contingency in the first place. Our guide to how the financing contingency works covers what Form 22A actually protects.

Your real estate agent will know the current version and the timing built into your specific contract. The deadline for when a seller may first deliver the notice is set in the financing addendum, and the blank can be filled in differently deal to deal. Ask your agent to read your actual contract rather than assuming a standard number, because that field is negotiable and gets negotiated.

What happens if the buyer does not respond?

The seller may terminate. This is the part buyers should understand clearly.

After the three-day response window passes without a waiver, the seller can deliver a Notice of Termination and the agreement ends.

Here is the part that surprises people: the buyer's earnest money is refunded. If the seller terminates before the buyer has waived the financing contingency, the deposit goes back to the buyer. The contingency was still in force, and it protected the deposit exactly as designed.

So a notice to perform is not a penalty mechanism. It is a scheduling mechanism. It converts an open-ended wait into a decision with a deadline, and the buyer who cannot commit walks away with their money.

Is a notice to perform the same as a notice of termination?

No, and the sequence matters.

A notice to perform is a demand for action. It starts a clock and asks the buyer to do something specific.

A notice of termination ends the agreement. It comes after the clock runs out.

You cannot skip the first to get to the second. The notice to perform is the required step that makes termination available.

What to know if you are buying

Receiving one of these is not an accusation. It is a seller asking whether you are actually going to close.

Call your lender the same day. The real question underneath the notice is whether your financing is on track. Your lender knows, and three days is enough time to get a straight answer.

Do not waive reflexively. Waiving your financing contingency means that if your loan later falls through, your earnest money is exposed. If your approval is genuinely solid, waiving is reasonable. If it is not, waiving converts a protected exit into an expensive one.

Understand that letting it lapse is a legitimate choice. If your financing is not going to come together, allowing termination returns your deposit. That is a far better outcome than waiving, failing to close, and fighting over the money.

Respond in writing, inside the window. Verbal reassurance to an agent is not a waiver. Confirm the form was delivered.

What to know if you are selling

Use it when you have a reason, not when you are impatient.

The right moment is when a contingency has run well past a reasonable period and you are getting vague answers about financing. You have a home off the market and a buyer who may or may not be able to perform. The notice gets you an answer within days.

Two things to weigh before you send it:

You might lose the buyer. If their financing is close but not finished, forcing the decision can push them to walk rather than waive. Ask your agent to talk to the listing side's counterpart first. A phone call frequently resolves what a form would escalate.

You are not keeping the earnest money. If they let it lapse, the deposit goes back to them. The value here is the return of your listing to the market, not a payday.

Weigh the days you would spend relisting against the days you are currently losing to uncertainty. That comparison is usually the answer.

Key takeaways

• A notice to perform forces a decision on a stalled contingency.
• Washington uses NWMLS Form 22AR, tied to the Form 22A financing addendum.
• Three days to respond, then the seller may terminate.
• The buyer's earnest money is refunded if termination happens before they waive.
• Read your specific contract. The timing field is negotiable and varies deal to deal.

Frequently asked questions

Can a buyer send a notice to perform to a seller?

The Form 22AR process is built around a seller pressing a buyer on the financing contingency. Buyers facing an unresponsive seller have different remedies, and those depend on what the seller is failing to do. Ask your agent which notice applies to your situation.

Does receiving a notice to perform mean I did something wrong?

No. It usually means time has passed and the seller wants certainty. Buyers whose lenders are simply slow receive these through no fault of their own.

Can the deadline be extended?

By agreement, yes. If your financing is days away, your agent can ask for an extension in writing. Sellers frequently agree when the delay has a clear end date, because their alternative is relisting.

What happens to my earnest money if I waive and then cannot close?

That is the risk of waiving. Once the contingency is gone, failing to close without another contingency to rely on puts your deposit at stake, subject to Washington's cap on liquidated damages. Our guide to what earnest money is covers how the deposit works.

Getting a straight answer from your transaction

Most notices to perform are a communication failure that reached its deadline. A phone call in week three usually prevents a form in week six.

At Every Door Real Estate, we keep buyers ahead of their contingency dates and help sellers decide when pressing for an answer serves them and when it costs them a buyer. If you have received one of these, talk with our team before the three days run.

This article explains how the process generally works in Washington. It is not legal advice, and contract language varies. If you are facing termination or a dispute, talk with a real estate attorney about your specific agreement.