Is an Email a Notice?

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.

Author: Tom Meyer Real Estate Broker, Madison, WI

I believe every every Offer to Purchase can present the unique ability of the person the contract is written for. The person who is most compelled to be cooperative, most qualified, most sincere, most committed, least risk adverse, can have an Offer drafted to show their true ability and commitment. Home sellers are likely to look favorably upon those offers which give them the most comfort. Licensees who know how to craft Offers as unique as the individual buyer are worth their weight in gold.

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