Jul 2016

Text Messages Add New Layer of Risk to Modern-Day Real Estate Transactions

By admin

As we discussed in a recent blog on the Statute of Frauds, buyers are usually not obligated to honor real estate agreements so long as they don’t sign a contract—albeit, there are important exceptions to the rule.

One of these exceptions has been catapulted into the news with a decision by the Massachusetts Land Court that text messages between two real estate brokers discussing the sale of a commercial building was sufficient, when read in context, to meet the requirements of the Massachusetts Statute of Frauds.

Specifically, if a text message identifies the subject of the parties’ agreement with reasonable certainty and bears some form of signature, it can be considered the legal equivalent of a written document with the same information. Granted this was just a matter of time before texts started to constitute a contractual binding agreement, but still a big step in catching up contract law and technology.

The Case

After discussing the deal in person, the terms of the agreement were reduced to a letter of intent (LOI). The LOI was revised and the deal, worth $3.232 million, was further negotiated via email to settle on the purchase price, due diligence period, earnest money deposit and closing date. One of the final texts stated the seller wanted the buyer to sign the LOI first. Once the buyer’s broker secure the requested signature, a text was sent to inform the seller’s broker that the LOI was signed, and the earnest money check was ready. Each text message included the sender’s name.

Rather than execute its part of the LOI, the seller’s principle ultimately accepted an offer from a third party to buy the building. The original buyer sued to enforce its rights under the binding letter of intent to purchase the property.

The Court Determination

When coming to a decision, the Massachusetts Land Court considered whether the text messages were substantial enough to create a binding contract for the real estate purchase. Without solid precedent on the matter, the decision was up in the air. The court found that the electronic communication conducted throughout the process evidenced an appreciation that the final exchange of text messages rendered the final LOI acceptable as an offer and acceptance.

Furthermore, the court found that the typed signature at the end of each text portrayed the sender’s intent to authenticate the messages. The fact that the brokers’ names were included in messages containing material terms, but were omitted from more informal discussions, was enough to authenticate electronically “signed” statements, according to the court.

Moving Forward; What Now?

As our methods of doing business evolve, courts must also modernize their interpretation of existing laws. This case should serve as a reminder to include qualifying language in electronic communications and, when possible, rely on more formal face-to-face interactions rather than less formal forms.

Final thought: So after you accept the terms of the agreement you are currently working on via SMS Text Exchange be sure to call World Wide Land Transfer for all of your title insurance needs!

For more information and a link to the court order on the case of St. John’s Holdings, LLC v. Two Electronics, LLC, click here.

World Wide Land Transfer: Leaders in NY Title Insurance and PA Title Insurance as well as Settlement and Escrow Services across the country.

World Wide Land Transfer can assist at every stage of your transaction, even after a text message consummates a real estate deal, wink-wink. We perform title searches to ensure properties are clear of encumbrances and other defects, prepare deeds of conveyance, and issue title insurance policies for both lenders and owners. Furthermore, our experienced Escrow agents hold and disburse funds, prepare title documents and complete closings anywhere throughout the country.

World Wide Land Transfer began as a PA title company, but we have expanded our services and now issue MD title insurance, NY title insurance, VA title insurance, FL title insurance, and more. Visit our homepage or contact us today for more information!

Leave a Reply

Your email address will not be published. Required fields are marked *

Sign up for our newsletter

    We're happy you decided to subscribe to our email list.
    Please take a few seconds and fill in the list details in order to subscribe to our list.
    You will receive an email to confirm your subscription, just to be sure this is your email address.