Can an addendum be part of a contract if it’s not submitted with the offer?
QUESTION: An offer was made on one of my listings that included a Seller Possession After Closing Agreement (Form 2A8-T). Following some negotiations on the Due Diligence Fee and Settlement Date, the buyer agent submitted a revised offer the next day. Paragraph 14 of the revised offer identified Form 2A8-T as a part of the offer, but a newly-signed Form 2A8-T was not sent with the offer. The seller signed the revised offer and the Form 2A8-T that had been submitted with the original offer, and I sent the signed documents to the buyer agent. Now, more than two weeks after being under contract and after repairs have been negotiated, the buyer claims that the Seller Possession After Closing Agreement is not part of the contract because it was not resigned and submitted with the revised offer. What do you think?
ANSWER: In our view, the Seller Possession After Closing Agreement is a part of the contract because the conduct of both parties tends to indicate that they intended it to be a part of their contract. In signing and returning the revised offer and the Form 2A8-T to the buyer agent, the seller’s intent to make the Seller Possession After Closing Agreement a part of the contract is clear. How about the intent of the buyer? Although the fact that a newly-signed and dated Form 2A8-T was not submitted with the revised offer is arguably some evidence that the buyer didn’t intend to make the Seller Possession After Closing Agreement part of her revised offer, in our view that evidence is significantly outweighed by the following facts supporting a conclusion that she did intend it to be a part of her offer: she signed the Form 2A8-T, it was identified in her revised offer as being a part of that offer, and she did not dispute that it was a part of the parties’ contract until well after it had been signed by the seller and returned to her buyer’s agent along with the signed offer.
Having said the foregoing, to help minimize the potential for arguments like the one being made by the buyer in your situation, we recommend that an addendum to an offer be dated and signed contemporaneously with the offer and submitted with the offer, or, at least resubmitted with the offer if the addendum has previously been signed and dated.
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