Should You Get the Acknowledgement Signed by the Other Side?
The Standard Form Agreement of Purchase and Sale contains an Acknowledgement section, following the signatures of the parties and the Confirmation of Acceptance section.
Here’s what it says:
I acknowledge receipt of my signed copy of this accepted Agreement of Purchase and Sale and I authorize the Brokerage to forward a copy to my lawyer
__________________ DATE ___________
__________________ DATE ___________
Address for Service____________________
__________________Tel. No ( )________
( )_________________( )_____________
Tel. No. Fax No.
A similar provision appears on the right side of the page dealing with the Buyer.
Assume that you are acting for the Buyer. Do you care whether or not the Seller ever signs this? Do you want a copy? What good would it be to you?
You appreciate at the outset that it is not necessary to sign. You still have a legal agreement even if both parties fail to sign the Acknowledgement. But, that’s not the end of it.
In the last minute flurry of activities, this document says that the Seller received:
1) my signed copy,
2) of this accepted,
3) Agreement of Purchase and Sale.
Naturally, there are several points here. Is there truly a signed copy, or simply a photocopy? If there are enough copies to go around, make sure that the Seller already has one. And, if it’s just a photocopy, then amend it as such.
The next point is that this is “accepted”. That means it is the final, final, final copy. There may have been others. There may have been six to start, but now there’s only one left. The Listing agent will keep the original and everyone else will get a photocopy. Nevertheless, this is indeed the final version.
The third point deals with the fact that we are talking about the Agreement. No longer are Offers, and Counter Offers important, we actually have a deal here.
This signature of the Seller confirms that it is his belief that there is a deal. Also, the Acknowledgement proves that he obtained a copy. So, in any litigation to follow, this may be tendered as proof of that fact.
The statement also provides: “I authorize the Brokerage to forward a copy to my lawyer”.
In my view, it should also have said “direct” as in “authorize and direct”. That way it would be clear that the Listing Agent was to forward the document to the Seller’s lawyer. The way this reads at the moment, it is just “permission” only. The authority also flows from the agency appointment and the Listing Agreement, so this is rather superfluous.
That’s all good from the Listing agent’s perspective, but why would the Buyer need it?
Let’s have a look at the following clause in the Agreement:
“3. Notices…… In addition to any provision contained herein and in any Schedule hereto, this offer, any counter-offer, notice of acceptance thereof or any notice to be given or received pursuant to this Agreement or any Schedule hereto (any of them, “Document”) shall be deemed given and received when delivered personally or hand delivered to the Address for Service provided in the Acknowledgement below,….” (underlining mine)
It is interesting that the Acknowledgement provision has indeed been made part of the Agreement. It is a fail-safe default “notice provision”.
Consider a Seller who has second thoughts, and refuses to close. All of this is against his own lawyer’s advice, but he leaves the country.
If other means of communication are not filled out or available, then you can just drop the notice off at the address. You will still probably need a process server. Locally, that will cost $50.00. However, I am aware of one such instance where lawyers, skip tracers, detectives and process servers were required to hunt down the Seller in a foreign country at a cost of $15,000.00.
The Buyer successfully sued the Seller and was awarded a Judgment. The Buyer then sued his own Agent for the extra $14,950.00 in costs. This action was settled out of Court.
If only the Buyer’s agent had insisted on getting a copy of the Seller’s Acknowledgement section!
Brian Madigan LL.B., Broker