Question: We went over your legal tip from last week at our office meeting. You said that creating a contract using C.A.R.’s Seller Counter Offer (SCO) requires the seller’s (or listing agent’s) personal receipt of the SCO signed by the buyer before the end of the 3-day expiration period. Let’s assume that the listing agent inserts his or her name in paragraph 2A of the SCO to become an authorized recipient of the SCO signed by the buyer. Here are some of the questions concerning personal receipt that came up at our office meeting:

1. If the SCO signed by the buyer has been physically delivered to the listing agent’s office, but the listing agent is not at the office, is there personal receipt?
   Answer: No. Personal receipt is generally understood to mean that the listing agent must somehow physically touch the actual document, or for an electronic communication, somehow see the actual document. That has not happened. Sometimes agents write in the name of their office, instead of their individual name, as the authorized recipient. That’s not a good idea, because a contract will be formed as soon as the listing office receives the SCO signed by the buyer, regardless of whether the individual listing agent knows about it.
2. What if the buyer’s agent sends the SCO signed by the buyer to the listing agent by email, but the listing agent has not looked at his or her computer or cell phone. Is there personal receipt?
   Answer: No.
3. What if the buyer’s agent sends the SCO signed by the buyer to the listing agent by email, and the listing agent is working on his or her computer or cell phone, but has not looked in his or her inbox. Is there personal receipt?
   Answer: Probably not. However, if the listing agent sees a pop-up notification of that incoming email, there may be personal receipt, especially if the subject line included in the pop-up notification says something like, “Signed SCO.” Keep in mind that this may be an interesting question from a theoretical standpoint, but in practice, it is very unlikely that a buyer’s agent will ever find out that the listing agent was working on his or her computer or phone, or saw a pop-up notification. Of course, if we are the listing agent in this scenario, our agent should just stay off his or her computer or phone altogether if he or she doesn’t want to personally receive a signed SCO by email.
4. What if the buyer’s agent sends an email to the listing agent with the SCO signed by the buyer as an attachment, and the listing agent opens and reads the email, and even sees that there is an attachment, but the listing agent does not actually open the attachment. Is there personal receipt?
   Answer: Probably so, although certain additional facts will bolster a claim that personal receipt has occurred, such as the subject line of the email says “Signed SCO;” the attachment itself is labeled as “Signed SCO;” or the content of the email addresses the attachment as the signed SCO. Again, this is mostly a theoretical question.
5. Is “personal receipt” the same thing as “Delivery” under the C.A.R. forms?
   Answer: No, but the 2 terms are very similar. The C.A.R. forms use the word “Delivery” for things like serving the other side with disclosures, the Notice to Perform, and the Demand to Close Escrow, but not for creating a contract. The word “Delivery” is specifically defined in paragraph 30 of the RPA, whereas “personal receipt” is not.

-Thank you to Kathy King (Calabasas and Encino Manager) for suggesting this week’s legal tip.

Copyright© 2019 Berkshire Hathaway HomeServices California Properties (BHHSCP). All rights reserved. Any unauthorized reproduction or use of this material is strictly prohibited. This information is believed to be accurate as of April 15, 2019. It is not intended as a substitute for legal advice in individual situations, and is not intended to nor does it create a standard of care for real estate professionals.