Answer
Buyer broker is correct. The buyer's home is sold, pending closing and thus, the proper form to include in buyer's offer to purchase seller's home is a Form 22Q. The fact that buyer's buyer has a home sale contingency is not relevant to the question of which form buyer broker should use. The only option, based on the facts, is Form 22Q.
If buyer broker used a Form 22B, then buyer would have to find a buyer for buyer's home but if, prior to buyer succeeding, seller bumped buyer then buyer could choose to take buyer's home off the market and stay there. However, that is not consistent with these facts. In this situation, buyer already has a buyer and in fact, buyer's home is already subject to a binding contract meaning that if buyer's buyer succeeds in purchasing buyer's home, then the home is sold and buyer no longer has the option of staying there. However, if buyer broker included a Form 22B in buyer's offer to purchase seller's home, then seller could bump buyer and leave buyer homeless. In addition, what would be the meaning of the bump provision? If seller bumped buyer, what would buyer have to accomplish to satisfy the bump? Buyer's home is already sold so could buyer simply respond to any bump notice with proof that buyer has a binding PSA? If so, then what was the purpose of the bump provision? Or would buyer have to demonstrate something more than just that the home is sold to the contingency buyer? Would buyer have to demonstrate that buyer's buyer's contingency has been satisfied because if so, that requirement is not specified anywhere in Form 22B.
Simply put, Form 22Q should be used in this scenario and Form 22B should not. Inclusion of Form 22Q, however, requires that buyer provide seller with a copy of buyer's pending sale. When buyer provides the copy of that pending sale, seller and listing broker should review to discover that buyer's pending sale includes a home sale contingency. If, based on that, seller does not want to accept buyer's Form 22Q offer, then seller should reject the offer. That feature of Form 22Q ensures that seller understands the full terms of any offer seller accepts without creating the risk of leaving buyer homeless.
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