All we need is one more Real Estate Agent Notice……. However, in a discussion yesterday, it became clear that it is very easy to confuse the subject of offer, counteroffer, counter counteroffer, E TC in real estate contract formation. I know a lot of real estate agents will call the other agent and say “we have a deal.” Is there really a deal before both parties sign the final version of the contract, and those copies are in possession of both the buyer and seller? Do we need a “NO-DEAL-NOTICE” ?
Many people say this is not a problem because the Statute of Frauds requires real estate contracts to be in writing. That is true except under the circumstances where all parties testify they reached an agreement. The Statute of Frauds does not protect a seller who has entered into an oral contract and is willing to admit. It protects a seller who does not testify a contract exists. To make things even more complicated, the Statute of Frauds protects against the remedy of specific performance. In other words you can’t force somebody by an oral agreement to sell you their property. On the other hand if you can prove the contract, there are some cases which indicate you may be able to get contractual damages.
I have written a little notice that I think all real estate agents need to put in their signature line for all emails. This notice should be given to all real estate buyers and sellers:
I am a real estate licensee. Whether I represent the Buyers, or the Sellers, or neither, the following statement is applicable: All offers to buy, and all acceptances of those offers, including counter-offers, must be in writing signed by the Buyers and the Sellers, and are binding only when delivered to those parties. I do not have the authority to make, or accept, any offers or counter-offers.