Definition of "personally accepted"

What is the name of your state? California

We have our home listed for sale. We recieved an offer and submitted a counter offer to a potential buyer. We set a deadline for the buyers to respond no later than 5:00 PM on Sunday.
Our agent spoke with the buyer's agent when he sent him the counter offer and told him he would be working out of his home. The buyers agent had our agent's home and cell number. While we waited for a response another offer came in. Our agent attempted to cotact the buyer's agent several times to see what was going on with the counter offer. There was no response from the agent. After the deadline, we accepted the other offer.

Problem, the first agent sent a fax to our agents office about 1 1/2 hour prior to the deadline (wrong location) and he made no attempt to advise our agent of the fax that accepted our counter offer. The fax was not found until later that evening, after the other offer was accepted. The first agent is claiming we are bound by the counter offer to his client. However, we don't feel he met the requirements in communicating the acceptance because we or our agent did not "personally recieve" and did not have knowledge of the acceptance prior to the deadline.

Paragraph 2 of the Counter Offer form states, “Seller reserves the right to continue to offer the property for sale or for other transaction, and to accept any other offer at any time prior to communication of acceptance, as described in paragraph 3. If this is a Seller Counter Offer, Seller’s acceptance of another offer prior to Buyer’s acceptance and communication of acceptance of this Counter Offer, shall revoke this Counter Offer.”

Paragraph 3 of the Counter Offer form states, ”…communication of acceptance is made by delivering a Signed Copy, which is personally received, to the person making the offer or to [our agent]…”

The buyer's agent is claiming that by him faxing the acceptance to our agent;s office he met the requirements of the agreement. We are looking for a definition on "Personally Revieved." And, are we bound to the first Counter Offer?

[HomeGuru]

[quote]Originally posted by nc0285
[b]What is the name of your state? California

We have our home listed for sale. We recieved an offer and submitted a counter offer to a potential buyer. We set a deadline for the buyers to respond no later than 5:00 PM on Sunday.
Our agent spoke with the buyer's agent when he sent him the counter offer and told him he would be working out of his home. The buyers agent had our agent's home and cell number. While we waited for a response another offer came in. Our agent attempted to cotact the buyer's agent several times to see what was going on with the counter offer. There was no response from the agent. After the deadline, we accepted the other offer.

Problem, the first agent sent a fax to our agents office about 1 1/2 hour prior to the deadline (wrong location) and he made no attempt to advise our agent of the fax that accepted our counter offer. The fax was not found until later that evening, after the other offer was accepted. The first agent is claiming we are bound by the counter offer to his client. However, we don't feel he met the requirements in communicating the acceptance because we or our agent did not "personally recieve" and did not have knowledge of the acceptance prior to the deadline.


**A: I would agree with you.
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Paragraph 2 of the Counter Offer form states, “Seller reserves the right to continue to offer the property for sale or for other transaction, and to accept any other offer at any time prior to communication of acceptance, as described in paragraph 3.

**A: this clause will help you because you are allowed to accept any other offer prior to communication of acceptance (which you did)
**********

If this is a Seller Counter Offer, Seller’s acceptance of another offer prior to Buyer’s acceptance and communication of acceptance of this Counter Offer, shall revoke this Counter Offer.”

**A: another clause that supports your position.
Your counter offer was revoked due to the fact that you were not notified of Buyer's acceptance prior to your acceptance of the next offer.
***************
Paragraph 3 of the Counter Offer form states, ”…communication of acceptance is made by delivering a Signed Copy, which is personally received, to the person making the offer or to [our agent]…”

The buyer's agent is claiming that by him faxing the acceptance to our agent;s office he met the requirements of the agreement. We are looking for a definition on "Personally Revieved." And, are we bound to the first Counter Offer?

**A: I disagree with the Buyer's agent because the agent did not immediately communicate via telephone call to your agent of the acceptance of the counter offer prior to the acceptance deadline and did not hand deliver the counter offer such that your agent could receive it in person or personally receive it.
The Buyer's agent could have faxed it to the North Pole for all that matters because your agent simply did not receive it in time and had no knowledge of its acceptance.
In my opinion, the "personally received" issue is a moot point because the key factor is one of communication by the Buyer's agent to your agent, confirming acceptance of your counter-offer prior to the expiration date.
Had the Buyer's agent simply called you agent prior to 5pm and verbally said, "Hey Joe, my clients accepted your counter-offer" then they would have a strong case. The actual paperwork could then have been faxed to your agent's office that evening or even hand delivered the next day.
The Buyer's agent simply failed to communicate. In this case, one simple one minute telephone call prior to 5pm would have made all the difference.
The CA State real estate licensing laws and the Realtor Code of Ethics also support your position.

Thanks for your reply. My main concern is that we may lose our current offer if they try to hold up escrow. Both parties signed the agreement use mediation and arbitration in the contract. But if the contract is revoked, are we still held to the mediation and arbitration clause?

[HomeGuru]

[quote]Originally posted by nc0285
[b]Thanks for your reply. My main concern is that we may lose our current offer if they try to hold up escrow. Both parties signed the agreement use mediation and arbitration in the contract. But if the contract is revoked, are we still held to the mediation and arbitration clause?

**A: yes, because the other sides claim would be that there still remains an accepted counter-offer.
Hire an attorney to help you settle this.