Expert: liznarr - 1/25/2006

Question
We submitted an offer on a piece of property in Colorado last Wednesday evening by email, after viewing the property that day.  We got a phone call from the real estate agent accepting our offer after she talked to the owner on Friday, Jan 20th at 41K.  She sent us the contract by email Friday evening, but it had errors in it and she was not able to send another corrected one until today(1/25) because she was out of the office until then.  We then signed and faxed the contract back to her.

She called the sellers to have them come in and sign, but the wife told the agent that they had another buyer and would only accept ours if we would go to 45K.  Are we just stuck on this or does the verbal acceptance mean something?  We also gave a check to the real estate for $500 earnest money, which the agent said she would deposit on Monday, Jan23rd.  Thanks so much!..Don


Answer
Hi Don,

My first question to you would be, “IF” the offer your agent sent you by email Friday evening had been correct; and “IF” you had immediately sent this offer back; was your agent still in town that point to have been able to get the offer to the Seller for acceptance?  Or would she have left town and not been able to send the signed offer to the Seller for acceptance anyway?

The above answer should indicate the level of “care and diligence” this agent demonstrated, “care and diligence” being two of the agency duties your agent owed you if she was, in fact, representing you – and not the Seller.

Offers and counter offers should be presented as quickly as possible.  When your agent knew she would be out of town with an offer in progress, another agent should have been appointed in her stead to keep the ball rolling for you if she could not continue the process for you from out of town.

While you did not indicate what the errors were, I am assuming that the errors were made by the agent in reducing the agreed-upon terms in proper form in writing.  

Out of town or not, five days is not an acceptable time period for her to have taken to correct the errors.  I can't think of too many places in this country where one would not have access to a computer with email capabilities, even if a person had to go to the likes of a UPS store or a copy store and pay to email something out to you again in proper form.

Unfortunately, verbal acceptance on a real estate contract does not really mean anything unless it is reduced to writing.  To be enforceable in a Court of Law, Contracts need to be in writing, so in my opinion you are stuck as far as dealing with the Seller is concerned.  Additionally, if you do not have your agent's counter offer of $41,000 in writing (at least in an email from this agent), this could present yet another problem; and it would be your word against hers.

Your recourse, I would think, might be against your agent.  Her lack of care and diligence will apparently cost you an additional $4,000 if you decide to go through with this purchase.  You might want to consider informing this agent that she was negligent; her negligence is costing you $4,000; you will pay the Seller the $45K instead of $41K; but that you will be looking for her agency to pay the $4,000 difference because of their negligence.  I say “their” because all agents work under a Broker-in-Charge (BIC) who is responsible for all acts of all their agents.  

If you decide to pursue the sale, it would not be a bad idea to contact the BIC and inform him/her what happened and see if he/she will voluntarily agree to your demand.  At bare minimum, you can file a formal complaint against the agent with your State Real Estate Commission, and also any Realtor Board that the agent belongs to.  

The above is only a suggestion.  If you do decide to go forward, you should contact a good attorney in your area for legal advice.

Good luck to you, and write again if you have additional questions.

Regards,
Elizabeth Narr