sends a reply e-mail to the listing agent asking if the seller will reconsider his decision to withdraw the counteroffer and reinstate his counteroffer. The listing agent replies in another e-mail that the decision is final and that the seller will be selling the property to Buyer B.
QUESTION Is the e-mail notice without a read receipt attached to it good notice of the seller’s decision to withdraw his offer?
ANSWER The answer to this question is yes. Had the seller withdrawn his counteroffer in a notice sent with a read receipt attached to it and the seller received a read receipt notice from the buyer, the seller’s notice of the withdrawal of the counteroffer would have been effective as of the date and time of the seller’s receipt of the read receipt notification. However, even without a read receipt response, the seller’s notice in this case would still be effective since the seller has written proof that the buyer actually received the e-mail and responded to it before the counteroffer was accepted.
Let’s change the example, however, to one where Buyer A never replies to the seller’s e-mail or simply sends the seller written notice of the acceptance of the seller’s counteroffer. In such a case, the seller would have no ob- vious proof of the buyer’s receipt of the e-mail in which the counteroffer was withdrawn or that the notice was received prior to the counteroffer being accepted by Buyer A. While, in litigation, the seller should be able to get access to the buyer’s computer through the discovery process to try to determine if the notice of the withdrawal of the offer was actually received and when it was re- ceived, the seller would be going into the litigation unsure of whether he or she had a winning or losing case. If an inspection of the buyer’s computer turns up nothing, the seller’s notice of withdrawal would be ineffective and if the buyer accepted the counteroffer and delivered notice of the same to the seller, the buyer would have the right to purchase the property. If the inspection shows that the seller’s e-mail notice of the withdrawal of the counterof- fer was actually received before Buyer A accepted the counteroffer, the seller would prevail.
The preferred means of notice under the GAR Contract tries to avoid the types of uncertainty described above and make it easier for a party to prove the receipt of
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notice by creating limited scenarios in which receipt is deemed to have occurred regardless of whether there has been actual receipt of the notice.
THE DOWNSIDE OF THE READ RECEIPT APPROACH WITH E-MAIL NOTICES While a read receipt response on the sender’s e-mail is deemed to be good notice under the GAR Contract, it is much riskier than sending a notice by facsimile. This is be- cause a read receipt response will normally only be gen- erated on the sender’s e-maill if both the sending and receiving computers are using a Microsoft operating sys- tem. If they are not, the sender of an e-mail can request a read receipt, the party receiving the e-mail can open it, but a read receipt response may never be generated on the sender’s computer. With this being the case, REALTORS® wanting to ensure that they have proof of the delivery of notice should always send the notice by facsimile.
If there is a downside to sending notices by fax, it is that facsimile machines are increasingly viewed as older, if not outdated, technology. Some real estate brokerage firms are trying to give greater weight to e-mail notices by in- cluding special stipulations in their contractswhich state that notice by e-mails is deemed received the moment the e-mail is sent. This is a dangerous approach because e-mail can be sent and, for any number of reasons, never received by the person to whom it was sent. Since this approach could result in a party being bound by a notice that the party never actually received, there is too great a likelihood for this type of notice to produce inequitable results. As a result, this approach should be discouraged.
WHO MAY RECIEVE NOTICE The GAR Contract allows notice to be received by the party, the real estate licensee, the broker representing the party as a client (except in situations where the bro- ker is practicing designated agency) and now, an em- ployee of the broker. This latest change was made so that notice could be dropped off with the broker’s receptionist (provided that he or she is an employee of the broker) or another employee of the broker. In hand-delivering notice to an employee of the broker, the person delivering the notice should always try to get the employee to sign a written receipt acknowledging that: 1) he or she is an employee of the broker; and 2) the employee has re- ceived whatever notice is being delivered to him or her.
If the employee refuses to sign such an acknowledgement, the licensee should either send the notice in a different
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