Agents Beware! When escrow officers complete the “Escrow Holder Acknowledgment” at the bottom of the last page of the newly revised RPA, they are asked to identify the person who advised them of the date of “Acceptance” of the RPA. This is a new field in the revised RPA, given that there is no longer a “Confirmation of Acceptance” paragraph in the RPA or counteroffer forms. If you are that person identified by the escrow officer in the “Escrow Holder Acknowledgment” as vouching for the date of “Acceptance,” you should make sure that the date is correct!

Here are some helpful guidelines: 

“Acceptance” Defined: The RPA defines “Acceptance” as when an offer or final counter offer is fully signed by the recipient party and “Delivered” back to the offering party or that party’s Authorized Agent (see paragraph 25A of the RPA). The term “Delivery” is also specifically defined in the RPA (see next paragraph below). As an example, if a buyer submits an offer that the seller finds agreeable, the date of “Acceptance” is when the seller signs that offer and “Delivers” it back to the buyer or buyer’s agent.

“Delivery” Defined: The newly revised RPA defines “Delivery” as either one of 2 options (see paragraph 25K of the RPA). The first option is the same as under the old RPA. Under the first option, “Delivery” for purposes of “Acceptance” occurs when the offering party or that party’s agent personally receives the other side’s written acceptance of that offer. Using the same example as that in the above paragraph, if a buyer submits an offer that the seller finds agreeable, “Acceptance” under the first option occurs when the seller signs and returns the buyer’s offer, and it is personally received by the buyer or buyer’s agent.

The second option for “Delivery” depends on whether the agent for the offering party has identified a “Designated Electronic Delivery Address” (DEDA) in the “Real Estate Brokers Section” on page 16 of the RPA. If yes, “Delivery” and “Acceptance” occur when the other side sends an email of that final document to the offering party. Using the same example as that in the above paragraph, if a buyer submits an offer that the seller finds agreeable, and the buyer’s agent inserted a DEDA in the “Real Estate Brokers Section” on page 16 of the RPA, “Acceptance” under the second option occurs when the seller signs the buyer’s offer and it is sent by email to the DEDA of the buyer’s agent (regardless of anyone’s personal receipt).

Example of Option 1 Using an SCO: Let’s say that the final document in a contract is a Seller Counter Offer (SCO), not the buyer’s offer. Let’s also assume that there is no DEDA for the listing agent in the “Real Estate Brokers Section” on page 16 of the RPA. In this scenario, we have “Acceptance” when all of the following 5 conditions have been met:

1. Buyer submits an offer on an RPA form;
2. Seller signs the offer subject to an attached SCO;
3. Seller signs and sends the RPA and SCO to the buyer’s side (Note: Sending the RPA back to the buyer along with the SCO is the best practice);
4. Buyer signs and returns the SCO to the seller’s side; and
5. Seller or the listing agent personally receives the signed SCO back.

Example of Option 2 Using an SCO: Using the same example as in the above paragraph, but this time, let’s assume that the listing agent does insert a DEDA in the “Real Estate Brokers Section” on page 16 of the RPA. In this case, we have “Acceptance” when all of the following 5 conditions have been met:

1. Buyer submits an offer on an RPA form;
2. Seller signs the offer subject to an attached SCO;
3. Seller signs and sends the RPA and SCO to the buyer’s side;
4. Buyer signs the SCO; AND
5. The buyer’s agent sends an email with the signed SCO to the listing agent’s DEDA (regardless of anyone’s personal receipt).

Copyright© 2022 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 January 10, 2022. 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.