How should I send a notice for breach of a sale (or lease) Contract?
The first thing to remember is that the real estate agents are NOT parties to the Contract between the parties. Nor are we lawyers and thus we can not create a notice from one party to another. The notice must come from one party (say the Seller) to the other party (say the Buyer). That notice must be delivered in accordance with the terms of the Contract between the two parties. This is why the addresses on the sales Contract are SOOOO IMPORTANT. These are where the notice should be addressed to the other party.
Now, most of us use the FAR BAR As-Is contract which states:
“Notice and delivery given by or to the attorney or broker (including such broker’s real estate licensee) representing any party shall be as effective as if given by or to that party. All notices must be in writing and may be made by mail, personal delivery or electronic (including “pdf”) media. A facsimile or electronic (including “pdf”) copy of this Contract and any signatures hereon shall be considered for all purposes as an original.”
Thus, what I recommend is that any Notice, say from the Seller to the Buyer for instance, should:
- Be drafted by the Seller.
- Be from, and signed by, all Sellers listed on the Contract (John Seller and Mary Seller).
- Be addressed to the Buyer(s) listed on the Contract (Joe Buyer and Christine Buyer).
- Be addressed to the Buyer(s) address listed on the Contract.
- May be sent to the other party via mail which should be done via certified mail AND regular mail which assumes that if it properly addressed is received by the other party 5 days after mailing.
- May be sent to the other party via personal delivery. If this is used then get the other party to sign for receipt of the Notice.
- May be sent to the other party via facsimile or e-mail. If the e-mail method is used then attach the Notice as a pdf and request a read receipt when sending it.
- May be sent via any of these methods to their attorney, broker, or sales agent of that broker. As with the methods above you will need the receiving party to acknowledge receipt of the notice.
Be aware that if the Broker (and thus their sales agent) has a No Brokerage relationship (as opposed to Transactional or Single Agency) with their party to the transaction then they are NOT representing them and thus they CAN NOT receive notices for them. This is often the case in a limited services listing and some times the case in a bank owned or REO listing. Ask your sales agent to verify the Brokerage relationship (Transactional, Single or No Brokerage) of the other sales agent.
