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.