Legal Question in Real Estate Law in California
Do I have a ratified contract???
I made an offer on a home that came back on the market. The listing agent said the previous offer fell through due to buyers failure to perform & offers will be presented as they come. I made a very good offer with the hope of getting it quickly accepted. The same day my offer was submitted, the listing agent faxed my agent the signed offer along with an addendum stating that my offer is accepted subject to release of contract with the previous buyer. The seller did not counter my offer subject to realease, nor was it referenced anywhere in the original contract. The listing agent never disclosed the property is being offered subject to release on the MLS, or verbally until after faxing back the signed offer. I feel the listing agent intentionally missled me into believing I was making an offer on an uncumbered property in order to use my offer to get the first buyer to perform. Since the seller signed my purchase agreement and did not counter it, do I have a ratified contract even though theywrote the addendum? Can I simply refuse the terms of their addendum since it was not incorporated by way of a counter offer? Also, the seller gave a specific date to which they can cancel the agreement if I am not provided a release contract.
2 Answers from Attorneys
Re: Do I have a ratified contract???
If X writes up an offer to Y, and Y signs it but at the same time adds, deletes or changes any material provision, Y's response is not an acceptance; it is a counteroffer. This is the so-called "mirror image rule;" stated in other words, an acceptance must exactly mirror the offer in order to bind the parties. So, I would say no contract was formed.
The fact that the terms of sale were not clear or complete is a kind of separate issue; the listing agent MAY have been either careless or a little deceitful in omitting the "subject to" condition from his solicitation of offers, but in my opinion this does not vary the fact that in a real-estate deal both offer and acceptance need to be in writing and the acceptance must accept the offer exactly as made or it is deemed a counrt-offer and not an acceptance.
I should add that local real-estate practice in some parts of the state may permit minor deviations between offer and acceptance, such as an acceptance clarifying an unclear provision in an offer, but mirror image is the usual rule.
By the way, what you're hoping for is an accepted offer, rather than a "ratified contract." There is a legal concept of ratifying a contract, but it's not the right term to use here. (An example of ratifying a contract might be as follows: X's agent enters into a contract with Y on X's behalf under circumstances where the agent's authority to bind X might be doubtful. X later signs the contract himself. X is said to ratify his agent's act, making the act proper and the contract enforceable from the get-go.)
Re: Do I have a ratified contract???
I can't tell based on your facts. I mean did you make a conditional offer? or not? You can call me, I suspect your better in person-person communication. Best regards,
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