Picture this: your brand new listing went under contract after only 36 hours on the market. Your Seller is ecstatic. The Buyer is paying cash with a large escrow deposit and you are even in negotiations for a Backup offer from another hopeful Buyer. You head out of town for a preplanned family reunion with a big smile on your face. Smooth sailing on what is sure to be a successful transaction! What could go wrong?
On the final day of the Inspection Period under the executed FAR/BAR AS-IS contract (“Contract”), the Buyer’s agent emails you that the Buyer is terminating the contract. The Buyer’s agent does not send over a formal Cancellation and Release nor does the Buyer’s agent explain why the Buyer is terminating the contract. Simply, the email reads, “Buyer is cancelling this deal, which the Buyer has the right to do.” With all the family reunion commotion, you do not read the Buyer’s agent’s email until you return to town. You immediately reach out to your Seller and notify them that the Buyer is trying to terminate the contract. Your savvy Seller states, “But the Inspection Period has passed! If they terminate the deal, that large escrow deposit is mine!” Suddenly, this smooth sailing transaction is anything but that!
The central question under this fact pattern is whether the Buyer’s agent’s email is considered notice under the Contract. Section 18 O. of the Contract states, “Notice and delivery given by or to the attorney or broker (including such broker’s real estate licensee) representing any party shall be as effective as if given by or to that party. All notices must be in writing and may be made by mail, personal delivery or electronic (including “pdf”) media.” Translation: the email is very likely proper notice! You are a broker’s real estate licensee and the notice was provided via electronic media within the Inspection Period. So now what?
Since the Contract was properly terminated within the Inspection Period, you and your Seller are back at square one and your Seller has no right to the large escrow deposit. Fingers crossed that the potential Backup offer comes together! The natural question then arises, what could have been done to prevent this? A prudent closing agent is an important tool to ensure notice is provided to the appropriate parties. A closing agent’s practice of thorough communication ensures that all parties are informed throughout the transaction, regardless of any preplanned family reunions. As always, if you have any questions about providing proper notice under the Contract, reach out to your local real estate attorney.
Robert R. Garcia, Esq.
Berlin Patten Ebling, PLLC
This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.
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