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E-Mail May Be Binding in Real Estate Deals - NY State Court Rules

By
Real Estate Agent

New York State court recently ruled that e-mails can carry the same weight as traditional contracts. In New York real estate transactions, a contract is not binding until it is a fully executed contract signed by both buyer and seller.

A court ruling may be a game changer.

In a recent commercial real estate dispute case which has the same implications for residential real estate, New York state's highest court ruled:

"As much as communication originally written or typed on paper, an email retrievable from computer storage" is proof of a deal, according to the court's opinion.

In it's decision the judges took the view that if an e-mail can be used for financial transactions like taking out business loans, it should be good enough for home purchases, too.

Be careful what you type and be careful when you hit send or reply. New York's highest court affirmed that e-mails are binding in real estate negotiations. This is an important implication for buyers and sellers in New York state.

During my real estate career, I've been on both sides of the transaction when one buyer had an accepted offer, or even signed the contract and the seller sold to another buyer. It's standard practice. Keep showing until there is an executed contract.

In most states Realtors write offers, they are contracts. In New York, offers and counter offers were never binding either verbal or written. This ruling may change that.

The case involved a contract that went out for $50 million for a commercial building. The buyer assumed he was he buyer and started researching structural work needed. The buyer then found out the seller sold to another buyer for $52 million. A typical NY real estate deal, it happens if it's $50 million or $500,000. However, this time the buyer sued for breach of contract. According to an old email from the seller's broker the buyer was granted a first right of refusal to counter. The buyer never replied to the email. Because he didn't "reply"  the court said he couldn't claim the first right of refusal had even been offered .

The NY courts confirmed emails are binding. Saving emails can help you or hurt you depending on what it says and if you "reply" or you don't "reply" can make a big difference.

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Danny Frank
JLA Realty - Pearland, TX
The Pearland Real Estate Expert

I see this happening all of the the place... Be careful of what you put on an email or on Facebook...

Feb 22, 2011 05:38 AM
Robin Dampier REALTOR®
Coldwell Banker King - Hendersonville, NC
Hendersonville & Western NC Real Estate Source

Wow, that could be a very dangerous pit!  Emails can also be altered/edited by Outlook.  What's the protection against that I wonder?  Remove the hard drive and have a techie check it out?

Sue of Robin and Sue

Feb 22, 2011 05:43 AM
Laurie Mindnich
Centennial, CO

How odd. Our state approved sales agreement found on MLSLI indicates that it is indeed a binding agreement, so "consult your lawyer", yet no one appears to view it that way (except, perhaps a judge, if the issue were pushed?). Now, an email can be binding, without such disclaimers. Interesting.

Feb 22, 2011 06:33 AM
Trang Beuschlein
Homes for Sale in Campbell CA- Broker-BKR Realty - Campbell, CA
Campbell CA Real Estate - Campbell CA Homes for Sa

I worked with lawyers in my previous life and use e-mail as a record of the communications with other agents and my clients.  I know that you have to be careful of how you words things in case the e-mails are used in court in the future.

Feb 22, 2011 07:19 AM
Mitchell J Hall
Manhattan, NY
Lic Associate RE Broker - Manhattan & Brooklyn

Danny, We need to be careful of every thing in writing or on the internet.

Hi Sue, Often I see disclaimers that say "This shall not be deemed an offer, as no documents are binding unless and until executed" Ads for new construction always a a disclaimer that it is not an offer for sale.

Laurie, That form looks very official and binding.

Trang, I work with lawyers that put in contracts that electronic and facimile signatures are valid and binding. There are also some old fshioned lawyers that make the client sign originals and only in person in their office.

 

Feb 22, 2011 09:32 AM
Steve Shatsky
Dallas, TX

Hi Mitchell... I suppose that even in this high-tech day and age, there may be something preferential to a phone call versus an e-mail, depending on your perspective, of course!

Feb 22, 2011 03:42 PM
Ron and Alexandra Seigel
Napa Consultants - Carpinteria, CA
Luxury Real Estate Branding, Marketing & Strategy

Hi Mitchell,

I am not surprised.  I feel that one has to be careful in how emails are worded in all transactions.  It is easy to misinterpret the written word, so we preach care and more care on what is said on line.  A

Feb 22, 2011 05:12 PM