Get it in Writing
We know. You’re in the real estate industry. You’ve heard “get it in writing” a thousand times. That applies to contracts for the sale of property (I’m sure you’ve read a previous blog on Florida’s statute of frauds), and for any changes to the contract that the parties agree on. The purpose of this blog isn’t to harp on those issues. However, the FAR-BAR contracts that everyone knows and loves deal with another issue that is required to be in writing: notices.
The FAR-BAR contracts call for all kinds of notices to be given. A notice of termination may be given under an “As-Is” contract during an inspection period. Financed deals require that a notice of loan approval be given to a seller, and allow for different notices to be given if loan approval is not timely received. Notice of defects in title may be delivered by a buyer, which obligates a seller to take corrective action. All of those notices share one thing in common: they are subject to Section 18.O. of the FAR-BAR contracts, which states in pertinent part that:
All notices must be in writing and may be made by mail, personal delivery, or electronic (including “pdf”) media. A facsimile or electronic (including “pdf”) copy of this Contract and any signatures hereon shall be considered for all purposes as an original.
That language is not optional. Notices must be in writing. Notices that are not delivered in writing are generally not effective. So: a quick phone call to the seller to advise of receipt of loan approval or an in-person conversation to advise of the termination of a contract on the last day of an inspection period is no good. That can be a pretty big deal.
What are the take-aways here? Obviously, if you are working with the party that is looking to provide notice, you need to ensure that it is properly provided in writing. But how about if you receive a verbal notice from a counter-party? Are you allowed to rely on that verbal notice? Nope. Follow up in writing, and make sure that you have received confirmation in writing. This prevents an uncomfortable “he said she said” argument over what was discussed orally, but more importantly, it complies with the contractual requirements for provision of an effective and enforceable notice.
One final point: as time goes on, more and more communications are taking place via text message. Can communications via text qualify as contractual notice? The answer: maybe? The FAR-BAR contracts don’t specifically contemplate the use of text messages, but they do approve of written notices delivered by “electronic media.” No caselaw provides any insight on whether text messages fit under this definition, but it is likely that most judges will say that they do. Despite the fact that text messages are likely permitted for delivery of notice, it is recommended against relying on this medium. Text messages lend themselves to informal language and are by their nature brief communications. In hindsight, you will often find that text messages don’t have the clarity that you intended when sending them. So, even though texts may be used to deliver notice, utilize email as a more formal means of communication that is more likely to deliver the intended message.
