If the associate or broker representing the seller calls and says the seller accepts the offer, but the seller changes his or her mind before signing, is there a contract?
Orlando, Florida – question: I am the buyer's agent. We found the perfect home and made a very strong offer. The same day, I received a call from the listing agent who said the seller had accepted the offer and would be signing the contract and shipping it back within 24 hours if possible. I called the person in charge three days in a row, but there was no response. On the fourth day, the representative sent me a text message informing me that the seller had signed a contract with another buyer. My buyer is furious and feels he has valid legal claims against the seller, listing associate, and listing broker. Is my buyer correct?
answer: Probably not. First, let's look at the relationship between buyers and sellers. As a matter of general contract law, a party receiving an offer can accept, reject, oppose, or simply ignore the offer. Because this is a contract for the purchase and sale of real estate, fraud charges apply and provide that the contract must be in writing and include the signature of the other party before it can be enforced. While oral contracts may exist in other types of transactions, this does not apply to the purchase of real estate.
This written offer contains only the buyer's signature and therefore does not create an enforceable contract against the seller. I had an offer, but it was rejected after 4 days. Further, from the Seller's perspective, these facts do not indicate evidence of fraud, misrepresentation, or other conduct on the part of the Seller. As there is no valid claim under contract law and there are no additional facts against the seller, we do not believe there is a valid claim against the seller.
What about a Listing Associate or Listing Broker? The Listing Associate's primary obligation in this situation is to make “all offers and counter-offers in a timely manner, unless the parties have previously directed the licensee in writing.” It is. This obligation applies to both transactional broker relationships and sole agent relationships as described in Section 475.278, Florida Statutes. The listing agent appears to have complied with this rule by presenting both your buyer's offer and the mystery buyer's offer in a timely manner.
Liability could arise if the buyer can prove that there was some form of fraud or misrepresentation by the listing agent, and if so, this liability could extend to the brokerage firm. These are general principles of law that can be used in civil litigation, but they can also be the basis for FREC or Code of Ethics complaints. For reference, Section 475.25(1)(b) of the Licensing Act provides that “any transaction under this Agreement shall be prohibited by fraud, misrepresentation, concealment, false promise, false pretense, trick, conspiracy, artifice, dishonest dealing; “Responsible negligence or breach of trust'' is prohibited. A state, or any other state, nation, or territory. ”
In your story, the listing agent called to say that the seller had reviewed the offer, liked it, and planned to sign and return it immediately. Perhaps it's all true. What about the other part of the contract that says the seller has “accepted” it? Is that enough to win a lawsuit, FREC complaint, or Code of Ethics complaint?
The technically correct answer is that these questions are always decided on a case-by-case basis, so ultimately it is up to the judge, jury, or hearing committee. That said, there doesn't seem to be much here. The listing agent correctly told me that the offer was not signed yet. Hopefully It will be signed and returned soon. These are material facts based on the fraud charges and were accurately communicated.
A judge, jury, or panel may decide that the phrase “Seller accepts” is misleading, but I did not understand it that way. This phrase indicates that the seller has no objections to the terms and intends to just sign instead of sending a counter-offer or inviting the buyer to submit a new revised offer. It sounded like it was meant to be conveyed. It also appears that the seller was not trying to deceive buyers, but was merely providing unofficial updates.
In the future, when we receive positive initial feedback from the licensee on the other side of the transaction, we acknowledge that the offer or counter-offer is merely a preliminary step that may lead to a fully executed and binding contract. With that understanding, we recommend exercising more cautious optimism. future.
Joel Maxson is an Associate General Counsel with Florida Realtors.
Note: Information believed to be accurate as of the date of publication
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