This is actually a question which arises all the time. Some people will say “yes” and others will say “no”. Let’s have a look at the sequence of an Offer.
Robert lists his house for sale through Richard at ABC Realty.
Wilma is interested as she has been looking with her agent Christine for several months for a similar property.
10:15 Wilma calls Christine and requests that an Offer be prepared
11:15 the Offer is ready
12:15 they meet and review the Offer
12:45 Wilma approves the Offer
12:50 Wilma signs the Offer
12:55 Wilma turns the Offer over to her Agent, Christine
1:00 Christine leaves with the Offer
1:20 Christine calls Richard and advises that she has an Offer
1:25 Christine sends an email to Richard confirming
1:30 Richard confirms 7:00 pm appointment for presentation
2:00 Christine sends Form 801
5:00 Wilma calls Christine and says that she has changed her mind
The Offer was prepared upon a standard Form OREA Agreement of Purchase and Sale. The Agreement was irrevocable until 8:00 pm. There was a deposit specified to be provided “upon acceptance”, which means “within 24 hours”.
Christine calls Richard to say that there will be no Offer presentation. Richard says “no” you have to deliver the Offer, I have a Form 801, and that Offer is open until 8:00 pm for my client to sign.
So, who’s right?
Wilma delivered the Offer to her OWN Agent. Wilma is still “in control”. She can give instructions, she can change her instructions. In effect, while the document is still under the possession of Christine and has not been released to Richard or his client, this Offer is at best held by Christine “in escrow” subject to the instructions of Wilma concerning its release and delivery. It is the duty of an Agent to follow the lawful instructions of the Principal.
In this case, Wilma simply said “don’t deliver it, just return it to me”. That is not withdrawing an Offer, revoking an Offer or rescinding an Offer. This Offer was never delivered.
In accordance with Bill 55 “phantom offers” legislation, the Offer was “received” by Richard at 1:25 pm. That was the time when written communication of the existence of an Offer took place. Technically, there is no such thing as “registration”. That is simply a statutory requirement. It has nothing to do with contract law.
Also, Form 801 is just a “red herring”.
When we are looking at contracts, the “delivery” had never taken place at all. So, Wilma was simply, in control all the time and well within her rights to change her mind.
Brian Madigan LL.B., Broker