Can a notice sent electronically be “legal notice” under the standard offer to purchase and contract?

QUESTION: My clients have a fully executed contract (Standard Form 2-T), but the buyers have not timely delivered the agreed upon earnest money deposit and due diligence fee. We know we can send a notice to the buyers demanding that they deliver the funds under paragraph 1(d) of the contract. Does the notice have to be an actual writing or can it be sent electronically?

ANSWER: Paragraph 1(d) of the Offer to Purchase and Contract (Standard Form 2-T) states that “[s]hould Buyer fail to deliver either the Due Diligence Fee or any Initial Earnest Money Deposit by their due dates, . . . Buyer shall have one (1) banking day after written notice to deliver cash, official bank check, wire transfer or electronic transfer to the payee.” The written notice requirement of Paragraph 1(d) should be read in conjunction with Paragraph 20 of the Form 2-T. Paragraph 20 states that “any action” between the parties “relating to the transaction contemplated by this Contract may be conducted by electronic means, including . . . any notice or communication given in connection with this Contract.” In addition, paragraph 20 provides that any notice may be given to a party or that party’s agent.

Since Paragraph 20 allows the parties to send notices through electronic means, it is perfectly legal for a seller to send the written notice contemplated by paragraph 1(d) electronically as long as the “Notice Information” section of the Form 2-T includes an email address or fax number for the buyer or the buyer’s agent. If the “Notice Information” section does not include an email address or fax number for either the buyer or the buyer’s agent, notice by electronic means arguably would not be allowed.