manner or possibly video the delivery of the notice to the employee. One issue that will certainly arise in allowing notices to be given to an employee is that the person re- ceiving the notice may turn out not to actually be an em- ployee of the broker creating an issue as to whether the notice was effective. Therefore, the person delivering per- sonal notice to an apparent employee of the broker should always ask whether the person really is an employee. If the person sitting at the receptionist’s desk of a brokerage office signs an acknowledgement that he or she is an em- ployee of the broker, and it later turns out that he or she was not an employee, most courts will likely find that the person had apparent authority to receive the notice and the notice will likely be found to be sufficient.
NOTICE TO AN UNREPRESENTED PARTY The GAR Contract provides that a licensee can only ac- cept notice for a party if the broker is representing the party as a client. Therefore, a licensee cannot accept no- tice for someone who the broker is merely working with as a customer. The GAR Contract was changed in 2013 so that unrepresented parties must provide at least one means of receiving notice. Licensees are well-advised to insist that an unrepresented party provide multiple means by which they can be contacted so that sending notice to an unrepresented party is as easy as possible.
Some real estate contracts include a provision allowing a real estate broker working with a party in a customer re- lationship to accept notices on behalf of the customer. The GAR Contract does not follow this approach on the theory that anyone receiving notice for a party should be in a closer relationship to that party than just a customer relationship. From a legal perspective, however, a party can designate in a contract that any person of their choosing can receive notice on behalf of the party. Having a broker accept notice on behalf of a customer should definitely be avoided in situations where the same broker is also representing a different party to the transaction in a client relationship. This is because in this situation, the broker could both give and receive the notice without the notice ever changing hands (since the broker can ac- cept notice for both parties). As such, it puts the Broker in a potential conflict of interest situation in which every- one must simply accept the word of the Broker as to when notice was given and received.
WHO MAY SEND NOTICE In the GAR Contract, notice must be signed by the person giving the notice. This was done intentionally to minimize
16IGEORGIA REALTOR®
claims of parties that their real estate licensee sent an unauthorized notice on their behalf. Therefore, while a party can include a special stipulation in a purchase and sale agreement that a real estate licensee is authorized to both receive and send notices on behalf of the party, this practice is discouraged. Let’s look at the example below to better understand this risk.
EXAMPLE A purchase and sale agreement provides that the real estate broker or the affiliated licensee of the broker can both receive and send notices on behalf of their respective clients. In reliance on this provision, a seller calls his or her real estate licensee and directs her to submit a new counteroffer in which the sales price is reduced by $25,000. The buyer immediately accepts the counteroffer. The seller then calls his or her licensee and says that he was only considering such a counteroffer and never directed the licensee to make the counteroffer on behalf of the seller. The seller then tells the licensee that he will be offsetting the price reduction against the listing broker’s commission. Is the broker at risk? Clearly, the answer to this question is yes.
Without written proof that the listing agent was given authority to make a counteroffer, the licensee would be at risk of the seller later denying that he or she directed the licensee to make the lower offer. Absent some written directive which proves that the licensee acted with au- thorization, the licensee might have a hard time defend- ing himself or herself since the seller could also argue that the licensee acted unilaterally to submit the lower offer to earn a commission. The thought in not allowing licensees to send notice on behalf of a party is that since the licensee must get written authorization from the client or customer anyway as to the substance of any notice, why not just have the client or customer sign the notice in the first instance?
BEFORE SENDING AN IMPORTANT NOTICE Before sending an important notice, the party sending the notice should always review the contract to confirm what is required for there to be good notice under the contract. Some contracts limit how notice may be sent to a few specified options. Other contracts require that the notice be sent to a specific individual at a particular ad- dress. Still other contracts provide that notice must be
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