Hypothetical Situation: The terms of the contract include this statement: “Within 24 hours of receipt of the report, Buyer shall deliver a copy of the report and a notice to Seller stating the defects the Buyer objects to, or this contingency shall be considered satisfied.”
At 3:00 PM on October 21st, the buyer receives “the report”. At 9:00 AM on the 22nd, the Buyer agent attaches the report to an email and sends to the Listing Agent. The email reads in part: “The buyer is concerned about the condition of the furnace. They would like ask Seller to have an HVAC contractor service the furnace.”
It is now 4:00 PM on October 22nd. The Listing Agent informs the Buyer Agent that the Seller considers the contingency satisfied because the 24 hours has lapsed without the Buyer delivering a Notice of Defects per the terms of the Offer. The Buyer agent believes his email was sufficient to be the notice called for in the Offer.
Is the email a Notice? Maybe. Determining if the buyer delivered notice timely is a question for the courts. Deciding which forms to use is the responsibility of the licensee. Whether or not an email, text, or phone call is sufficient the licensee could first determine if an approved form is available. (Wis Stat 452.40(2) and REEB 16 explain our obligation to use approved forms). In this case, a Notice is available. The term notice is used in the Offer, the agent drafting the Offer is a licensee, and the parties could reasonably expect the licensees to use proper forms. It’s probably reasonable that the listing agent and the seller considered the email a “heads up” that a Notice was coming. The Notice did not arrive and the agent and Seller concluded the buyer had a change of mind and opted to let the contingency be satisfied.
Could an attorney consider an email from him or her a sufficient notice. Probably. The attorney does not share our obligation to use available forms.
If the reason for sending an email, text, or leaving a voice message has anything to do with saving time, or for convenience, the question of whether or not a Notice is required is probably answered. Yes.
“. ..legal developments of the past three or four decades, in Wisconsin, and elsewhere, have substantially increased the protections for the real estate buyer, especially for the buyer of a newly constructed home. ” p. 18-22 Consumer Protection, Wisconsin Real Estate Law 2017 Edition.
Is a single family home seller free and clear of liability by ignoring the Real Estate Condition Report? Not likely. Of course in each situation parties should consult an attorney. The cautions in the Offer to Purchase give us enough of a hint to conclude that a seller is far from safe by omitting the RECR. The Offer to Purchase form as it reads today includes language where the seller represents that he or she has no knowledge of conditions which meet the definition of a defect. (Remember that the RECR is a series of affirmative statements, such as “I am aware of defects in the roof.” )
In the Offer the statement is “the seller has no notice or knowledge of conditions affecting the property OR TRANSACTION. The possible conditions are listed as A through ff. A good number of these match the conditions on the RECR. An owner who knows of a condition affecting the property or the transaction (such as I am not the sole owner of the property) should not sign the Offer as written.
The RECR is dated as of the date the Seller completed the form. The Seller’s representation of no conditions affecting the property or transaction is as of the date of acceptance of the offer. If the known facts are different than shown on the RECR disclosure is expected. A licensee is prudent to advise a seller to consult an attorney before accepting any offer which inaccurately states the seller’s knowledge of conditions. A counter offer is the proper form for notifying a buyer and permitting the seller the opportunity to have some protection.
Is it possible for us to see eye to eye, or be of one mind, or be on the same page when we humans are trillions individual universes? Sonder is the topic of today’s Seth Godin Blog
The moment we realize that everyone around us has an internal life of wonder and amazement and disappointments and sorrows we have achieved sonder. No, it’s not probable that we will see an issue the same as the other guy. I’m afraid, they’re afraid. We are each insecure and confident and safe and at risk at the same time and different times. Maybe discussions intent on ending with an agreement are a compilation of concessions back and forth between private, human universes.
Why do some negotiations become contentious? Because multiple views of life, the world, desire, fear, resentment are mingling. My desire for security conflicts with your desire for gain. My fear of losing conflicts with your commitment to winning. You want to win because you desire a pleasure. I don’t want you to win at my expense because I desire happiness.
Maybe I just had my moment of Sonder. Everyone has hopes, plans, desires, fears, feelings of fair treatment, opinions of slights and disrespect. Now what do I do with sonder? I think I will watch and listen.