be delivered in a variety of different ways including by: 1) facsimile, 2) e-mail; 3) by overnight delivery service, pre- paid; 4) registered or certified U.S. mail, prepaid, return receipt requested; or 5) in person. Where the GAR Con- tract is different from many other contracts is that notice by e-mail or by facsimile to a broker, a licensee of the bro- ker, or a party to the contract is only valid if the broker, a licensee of the broker, or the party provides, in the con- tract, an e-mail address or facsimile number at which to receive notice. If no e-mail address or facsimile number is provided, notice by this means to the broker, a licensee of the broker, or the party is not permitted. (There is one exception to this rule dealing with unrepresented parties discussed later in this article). If an e-mail address or fac- simile number of a broker, a licensee of a broker, or a party is provided on the signature page of the contract, notice may only be sent to the facsimile number or e-mail address provided in the contract.
There are two reasons why the GAR notice provision was written this way. The first is that the GAR Forms Commit- tee did not want to impose a requirement on REALTORS® to receive notice in a way with which they might not be comfortable. So, for example, if a REALTOR®
wants to re-
ceive notice by facsimile but not by e-mail, the GAR Forms Committee felt that this decision should be left to the REALTOR®
. Second, GAR wanted to avoid disputes over
whether a notice was sent to the correct e-mail address or facsimile number by having the licensee, broker, or party specify the number or address in the contract.
The GAR Contract, and most often other real estate con- tracts, provide that a notice “shall not be deemed to be given, delivered or received until it is actually received by the party to whom the notice was intended or their au- thorized agent”. As a general rule, this places the burden on the party giving the notice to prove that notice was received. However, the GAR Contract has two means of preferred notice where the GAR Forms Committee tried to make it easier for the sender of the notice to prove re- ceipt of notice. The first is notice sent by facsimile where the sending facsimile machine produces a written confir- mation showing that the facsimile was delivered success- fully and the accurate date, time and telephone number to which the notice was sent. A notice sent in this fashion is deemed to have been received as of the time it was sent. This is very beneficial to the party sending the no- tice because the party only has to prove that notice meet- ing these requirements was sent rather than actually received. The GAR Forms Committee gave facsimile no- tice this lofty status of ha ving being deemed to be re- ceived at the time of the sending because the GAR Forms
14IGEORGIA REALTOR®
Committee was unaware of a circumstance where a no- tice sent by facsimile in the manner prescribed in the GAR Contract was ever not received by the person to whom the notice was sent.
The second form of preferred notice is notice sent by e- mail where the sender of the notice receives a “read re- ceipt” response upon the e-mail being opened by the person to whom the notice was sent. In this instance, the notice is deemed received when the sender of the notice receives a read receipt response on the sender’s computer indicating that the e-mailwas opened. While the opening of an e-mail is not necessarily proof that the e-mail was actually opened by the party to whom the notice was sent (as opposed to someone else with access to the computer), it is still nevertheless deemed to be good notice under the GAR Contract since a person typically only gives others access to their personal e-mails who are close business associates or family members and who would then pass the notice on to the person to whom it was intended.
Does this mean that notice sent by e-mail without a read receipt is invalid? Similarly, what if the facsimile machine does not produce the confirmation sheet specified in the GAR notice section? Does this make the notice invalid? The answer to both of these two questions is no. Such e- mail or facsimile notices can still be valid. However, in these situations, the burden is on the sender of the notice to prove that it was actually received. In other words, no- tice is not deemed to have been received at the time it is sent. Let’s look at the following example to better under- stand how this works.
EXAMPLE A seller makes a written counteroffer to Buyer A in which the seller states that he will sell the property to Buyer A at a price of $250,000 instead of the $240,000 offered by Buyer B in the contract. The listing agent sends the signed written counteroffer by e-mail to the selling agent representing the buyer in a client relationship. After making the counteroffer, the seller unexpectedly receives a better offer from Buyer B to purchase the property at $255,000. The listing agent sends a second e-mail to the selling agent representing Buyer A stating that the seller is withdrawing his counteroffer effective immediately. The listing agent does not send the notice with a read receipt request attached to it. The selling agent for Buyer A must have received the e-mail because the selling agent for Buyer A then
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