facsimile was deemed received at the time it was sent under certain conditions. With facsimile technology now disappearing from the scene, the GAR Forms Committee is now also giving preference to other forms of electronic notice. The only form of notice that is not permitted under the 2015 GAR Forms is notice sent by telephone. So for ex- ample, in the 2015 Forms, a buyer cannot send a text or telephone message to a seller or the listing broker stating that the buyer is terminating the contract pursuant to the due diligence provision in the contract. However, this same notice can be sent by other electronic notices. The new notice requirement in the GAR Forms also re-
quires that all notices be in writing, legible and signed by the party giving the notice. So, for example, if a buyer is giving notice of the buyer’s decision to terminate the con- tract pursuant to the due diligence period, the notice must be signed by the buyer. Of course, since electronic signa- tures are permitted under Georgia law, a buyer could send
The buyer knows both of the seller’s e-mail addresses and sends the notice to the e-mail address not included in the purchase and sale agreement. In that instance, the GAR Purchase and Sale Agreement provides that the notice sent to an e-mail address not included in the purchase and sale agreement is not effective.Of course, even in the face of such a prohibition, if notice is sent to an e-mail address that is not included in the Purchase and Sale Agreement but it is nevertheless received and responded to, the party receivingthe notice would likelyhave a difficult time deny- ing the effectiveness of the receipt. The final change is the notice section is the addition of
language stating that “In the event of a dispute regarding notice, the burden is on the party giving notice to prove delivery. Of course, since for example, notice by e-mail is deemed to be delivered and received upon sending an e- mail to the other party’se-mail address includedin the con- tract, this should be all that is necessary to prove delivery.
THE new notice requirement IN THE GAR
FORMS ALSO REQUIRES THAT all notices beinwriting, legible and signed BY THE PARTY GIVING THE NOTICE.
an e-mail notice of termination to the seller or listing bro- ker and merely type his or her name at the bottom of the e-mail as the buyer’s electronic signature. The new notice section of the Purchase and Sale Agree-
ment also addresses in much greater detail when a notice is deemed to be delivered. A notice given in person is con- sidered receivedwhen it is actually received by a party. In the case of notice sent by courier, overnight mail or other similar delivery where a receipt of delivery is generated, notice is deemed received at the time of delivery provided that a record of the delivery is generated. In the case of delivery by electronicmeans (such as by facsimile or e- mail) the notice is deemed received when it is sent, pro- vided it is sent to a facsimile number or e-mail address of the party set forth in the contract. So, for example, let’s say that a seller has two e-mail addresses and only in- cludes one of them in the purchase and sale agreement.
14IGEORGIA REALTOR®
(D) FORM ALLOWS ADDITIONAL OPTION FEES
TO BE COLLECTED BY SELLER FOR GRANTING THE RIGHT TO A DUE DILIGENCE PERIOD. For as long as there has been aDue Diligence Period in
the GAR Purchase and Sale Agreement, the contract has also included a reference to $10.00in option money being paid by the buyer to the seller as consideration for the granting of such a Due Diligence Period. The reason for this is that the grant of a Due Diligence Period is viewed as the grant of an option during which the buyer can decide whether or not to purchase the property. Under Georgia law, separate consideration must be paid for the grant of this type of option. In the new GAR Purchase and Sale Agreement, a line has been added where the seller can seek option money for the seller granting an option period in addition to the $10.00already referenced in the Purchase and Sale Agreement.
JANUARY I FEBRUARY 2015
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