Question:
I have a Buyer submitting an Offer on a listing. We are in multiples as there are several other bids.
Our offer and the irrevocable until 8:00 p.m.
At 7:30 pm, I contact the Sellers agent alerting them to the deadline and asking what their intent is. I get a reply at 7:50 that their plan is to accept and the agent is running a bit behind. 8:50 pm I get a message that it’s been accepted and they will send it to us soon.
At 11:00 pm that night the accepted offer shows up with an authentisign time stamp that shows the acceptance was signed at 8:00 p.m. Was it accepted “in time” or not?
Answer:
They started out just missing the time. Now, they have entered into a fraudulent representation. Don’t participate. You need all new paperwork.0
The Buyer had to be advised of the acceptance by 8:00 pm. They weren’t. It’s too late now. At best we have “fake” documents at this point.
Remember the expression “signed, sealed and delivered”.. Here, the third step never took place.
In addition, at 7:50 pm there is a conversation. It discloses a plan, but that’s not enough, you need an actual written confirmation that it has been accepted (past tense. That would be sufficient and a copy of the actual Agreement of Purchase and sale could follow days later.
In addition let’s have a look at Paragraph 3 of the standard form Agreement. It says the following:
“3. NOTICES: 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. 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 where the Brokerage represents both the Seller and the Buyer (multiple representation) or where the Buyer or the Seller is a self represented party. 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.”
Let’s look at the second last sentence:
“Any notice relating hereto or provided for herein shall be in writing.”
Let’s look specifically at the final sentence:
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.”
So, that quite clear.
The actual acceptance must be in writing. And, the last sentence specifically refers to the “notice of acceptance” and the method that is to be used for delivery.
In this case, there was simply “discussion of a plan” and no notice of acceptance in writing whatsoever.
Brian Madigan LL.B., Broker