Legal Question in Real Estate Law in California

Re: multiple offers and counter offers

You cannot rescind the counter once it has been accepted regardless of when the second offer came in. Your counteroffer is considered both a reject of the first offer and a separate offer to sell. Once the couple who make the first offer accepted your counter, that's the end of the ball game.

If your agent breached a duty of loyalty to you by failing to communicate a better offer to you, you might have a claim against your agent. But for you, it sounds like you are stuck with the counter offer.

Re: multiple offers and counter offers

The answer is no, a seller doesn't have the right to cancel a counter-offer and accept another offer once the buyer has accepted the counter-offer. However, whether that answer applies here depends on some additional facts.

I am assuming that the buyer made her offer using a form called "Residential Purchase Agreement and Joint Escrow Instructions" (Form RPA-11) issued by the California Association of Realtors, and that you made your counter-offer on a form called "Counter Offer" (CO-11) also issued by CAR.

If you look on the Counter Offer document, there is a paragraph with the title "Multiple Counter Offer") around halfway down. If the box before it is checked, this paragraph says that you are accepting multiple counter offers, and that for any contract with the buyer to be valid, in addition to having the buyer sign your counter offer to indicate acceptance, you must also then counter-sign the buyer's signature. If the box is checked, and the buyer signed but you did not then ever counter-sign below (on "Counter Offer Signature Line"), then arguably you do not yet have a contract.

I say arguably because there are some facts that could change this -- basically, if you have done other things in the meantime to act as if you think there's a contract (allowing the buyer to do the inspection, start into the lending process, etc.).

The answer to your other question is that the person whose name is on the contract should be the person who is signing the documents. If the contract is only in the husband's name but the wife is signing everything (in her own name), I'd ask the realtor for the reason why. There may be an explanation (for example, he may have given her power of attorney), but I'd be curious to know what it is. Without knowing more facts, I can't give you a better answer.

And finally, even if you do have to go through with the deal, you may have a cause of action against the realtor if you can prove that the realtor breached the fiduciary duty owed to you in his or her capacity as your agent by failing to tell you about the second offer. However, in order to prevail ultimately, you would need to show that the realtor knew about the offer and failed to convey it to you for some reason, and that you were disadvantaged in some way by not receiving the second offer in a timely fashion (before your current buyer accepted your counter offer) (e.g., because the other offer was higher).

You are welcome to contact me with any other questions.