Fact Pattern: You are the listing agent for a sales transaction using C.A.R.’s Residential Purchase Agreement (RPA). After contract acceptance, the buyer’s agent, John Doe, sends over a one-page, stand-alone Designated Electronic Delivery Address Amendment (DEDA Amendment). He wants you to complete and sign that form.

Multiple Choice Question: What should you do? Pick the best answer:

A. If John Doe merely inserted his own DEDA email address on the DEDA Amendment, go ahead and sign and return the form.
B. If John Doe merely inserted his own DEDA email address on the DEDA Amendment, go ahead and insert your DEDA email address, and sign and return the form.
C. If John Doe inserted both his own and your DEDA email addresses, go ahead and sign and return the form.
D. Do not sign or return the form. 

Answer: To summarize from last week’s Legal Tip, agents can voluntarily opt in to allow the use of their own email address (or texting phone number) as a “designated electronic delivery address” or DEDA. If, for example, a buyer’s agent, John Doe, checks his own DEDA box in the Real Estate Brokers Section on page 16 of the RPA, any RPA-related document that the listing agent sends to that DEDA email address shall be deemed delivered upon the sending of the email, rather than personal receipt by John Doe (see paragraph 25K of the RPA).

Most agents are fine if the agent on the other side of a transaction has a DEDA email address, because you will only need to prove that you sent a document to that DEDA. You won’t need to verify that the document that you sent has actually been received by the other side. That said, many agents are reluctant to allow their own email address to be used as a DEDA, because you will have to closely monitor your own email inbox (including junk folders). But some buyers’ agents believe that checking their own DEDA box gives their buyer’s offer a leg up.

For this week’s Fact Pattern, Answer A is the best answer of the 4 choices, because, based on the way we are currently using technology, most listing agents do not want their email address or cell phone to be used as a DEDA. Answer A is especially correct if John Doe is using the DEDA Amendment form to change the DEDA information that he had previously provided, such as on page 16 of the RPA. Otherwise, it doesn’t make much sense for John to send you a stand-alone DEDA Amendment with his DEDA info when he could have just inserted that info on page 16 of the RPA. But it’s okay for you to sign and return the form, so that any RPA-related documents that you send to that DEDA will be deemed delivered when you send an email.

It would make even less sense if John were to provide his DEDA info on page 16 of the RPA, and subsequently send you a stand-alone DEDA Amendment form with that exact same DEDA info. But again, it’s okay for you to sign and return, although there’s no requirement for you to do that.

Answer B is likely to be what John is hoping you will do. You can provide your own DEDA info if you want to, as long as you are confident that you will have no issues receiving RPA-related documents sent to your DEDA email address (including any junk folders).

Answer C is what some buyers’ agents are sending over to listing agents. Again, you can allow for your email address to be used as a DEDA, but there’s no requirement for you to do that. Some buyers’ agents and their TCs may try to pressure you into signing this form, but there’s no requirement that you sign it.

As for Answer D, it’s okay not to sign. But you’re probably better off signing as described in Answer A so you can use John’s email address as his DEDA. But if I were the listing agent, I probably wouldn’t sign the one that simply repeats John’s exact same DEDA info as what is already on page 16 of the RPA.

-Thank You Again to Mike Metzger and Sami Tarrab (Calabasas Office) for suggesting this week’s legal tip!

Copyright© 2023 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 September 24, 2023. 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. Written by Stella Ling, Esq.