Acceptance can be communicated to seller’s sales rep by fax or in person. When seller’s rep receives notice, buyer received it in single representation.
Acceptance can also be conveyed at seller’s rep’s brokerage. Can this notice of acceptance be given to anyone (secretary, receptionist, another sales representative or any other employee of brokerage who is not licensed) OR does notice need to be given to licensed sales representative only (buyer’s sales rep or any other licensed sales rep in office) ?
Can this notice be given to any other sales representative of brokerage than seller’s sales rep, outside of brokerage office?
The Agreement of Purchase and Sale provides the following:
The Seller hereby appoints the Listing Brokerage as agent for the Seller for the purpose of giving and receiving notices pursuant to this Agreement.
Where a Brokerage (Buyer’s Brokerage) has entered into a representation agreement with the Buyer, the Buyer hereby appoints the Buyer’s Brokerage as agent for the purpose of giving and receiving notices pursuant to this Agreement.
Where a Brokerage represents both the Seller and the Buyer (multiple representation), the Brokerage shall not be appointed or authorized to be agent for either the Buyer or the Seller for the purpose of giving and receiving notices.
Any notice relating hereto or provided for herein shall be in writing.
In addition to any provision contained herein and in any Schedule hereto, this offer, any counter-offer, notice of acceptance thereof or any notice to be given or received pursuant to this Agreement or any Schedule hereto (any of them, “Document”) shall be deemed given and received when
- delivered personally or
- hand delivered to the Address for Service provided in the Acknowledgement below, or
- where a facsimile number or email address is provided herein, when transmitted electronically to that facsimile number or email address, respectively,
in which case, the signature(s) of the party (parties) shall be deemed to be original.”
You will notice that there are really four ways to deliver the notice. Personally, that would be handing it directly to the Seller. Dropping it off at the Seller’s address is also permitted. So, this works even if no one is at home or answers the door, just leave it in the mailbox. This address might be that of the Seller’s lawyer or the Seller’s work address. A person need not be present. Fax or email works as long as the numbers or addresses have been specified.
You will also see that the Listing Brokerage was also appointed to receive notices in addition to the Seller, on the Seller’s behalf, at the outset of the clause.
Delivery of the notice would be effective as long as the person at the Brokerage appeared to have “ostensible authority” to accept it. That would include the receptionist even though that person would not be a registrant. It would also include anyone who appeared at the front desk in response to a call by the receptionist, from the back office.
Assuming one arrived late at night, this ostensible authority would not extend to the cleaners, the janitor or someone painting the reception area.
This same concept is problematic when it comes to other registrants who are employed by the Brokerage but situate “off premises”. While they are indeed agents of the Brokerage for some purposes, they may not be perceived as having ostensible authority in the situation you mention. The same person “on the premises” as the “on duty agent” would likely have such ostensible authority.
Brian Madigan LL.B., Broker