Fact Pattern: A seller and buyer enter into a C.A.R. Residential Purchase Agreement (RPA). The buyer’s agent does not provide any Designated Electronic Delivery Address (DEDA). The seller has 7 days after acceptance to provide the seller disclosures to the buyer (under paragraph 3N(1) of the RPA). On Day 7, the listing agent emails the seller disclosures to the buyer’s agent. The buyer’s agent, however, does not check her emails until 2 days later (or Day 9).

Multiple Choice Question: When does the “Delivery” of the seller disclosures occur, as according to the RPA? Pick the best answer:

A. Day 7.
B. Day 9.
C. It depends on whether Day 7 is a Saturday, Sunday, or legal holiday.
D. It depends on whether Day 9 is a Saturday, Sunday, or legal holiday. 

Answer: Answer A is wrong, and Answer B is the correct answer. “Delivery” is specifically defined as “personal receipt of the document by Buyer or Seller or their Authorized Agent” (see paragraph 25K of the RPA). If there is no DEDA, “personal receipt” generally means that a copy of the document “is in the possession of the Party or Authorized Agent regardless of the Delivery method used.”

In this particular Fact Pattern, “Delivery” occurred when the buyer’s agent “personally received” the documents by checking her emails on Day 9. Of course, we may doubt the truthfulness of the Fact Pattern. How could it be that a buyer’s agent with a pending sales transaction fails to check emails for 2 days. Plus what if the agent is holding her phone and she can access her emails through her phone, would that be considered “personal receipt,” regardless of whether she actually looks at her emails?

Yet, whether the Fact Pattern is really true is an entirely separate issue from what’s the correct answer to the Multiple Choice question posed. Additionally, the buyer’s agent might have a logical explanation. Perhaps she was on a cruise ship, or an overnight wilderness hike, with no access to emails. In any event, it’s usually very difficult for you as the listing agent in this situation to prove facts contrary to what the buyer’s agent claims. If timing is important for a particular transaction, it’s much easier for the listing agent to simply call the buyer’s agent on Day 7 to confirm that the buyer’s agent has received the seller disclosures.

Answers C and D are likely to be wrong, although the RPA could have been drafted more clearly. We do not count Saturdays, Sundays, and legal holidays if they are the last day to perform “an act required by” the RPA (see paragraph 25.I.). But Day 7 is not really the last day for the seller to provide disclosures, because the RPA essentially has a built-in extension. It says that, if the seller disclosures are not timely delivered by Day 7, the buyer shall have at least 5 more days after delivery to remove an applicable contingency or cancel (see paragraph 14B(3)).

-Thank You to Clara Eisenman (Tustin Manager) 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 June 5, 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.