With inventory low, many agents are receiving multiple offers and while negotiating an offer and completing final paperwork, a higher offer comes in. Many Sellers want to take the higher offer, but they may have already accepted a prior offer (even if the final contract was not initialed or executed).
Here is a recent inquiry from an agent:
“I received an written offer (contract), my client countered via email and the buyer’s agent accepted then sent over an updated contract accepting the counter, at which point I received 2 additional higher offers.
In this situation, does the email constitute a written agreement? “
Here is our response:
This is an interesting question. If it came down to a court case, I think the buyers would be successful. A court, I believe, would say that the intent of the parties was to enter into the contract and since the seller accepted(even if by e mail) the intent was for the seller to enter into the contract.
To avoid this in the future, when e mailing back and forth, I would suggest using the following disclaimer be used in bold in your email:
“This e mail constitutes the negotiation of terms as set forth in the Residential Contract For Sale And Purchase(Contract) as submitted by the Buyer and the terms of this e mail are not binding on the Seller until the parties have executed a final Contract.”
I would suggest that this be distributed to agents to help avoid these situations in the future. As always, if you have any questions, please do not hesitate to contact me.
Very Truly Yours,