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"Licensee Emails Do Not Create a Contract"

by Ned Hale, Esq.

It has happened to you: You have a listing. Another agent emails you a written offer on a FR/BAR form signed by the buyer comes in at, say, $600,000. You speak to your sellers, and they say they will not accept less than $650,000. You communicate this in a quick email to the buyer’s agent. The buyer’s agent replies in an email that the buyer has agreed to pay $650,000.

You respond that you have a deal at $650,000. The buyer’s agent replies, “perfect and confirmed.” A few days go by, and no contract with this buyer is signed. In the meantime, an offer from a second buyer comes in at $700,000, and your seller signs this higher offer. You inform the agent for the first buyer of this, and she is furious. She says you had a deal with her buyer at $650,000, and her buyer is going to sue your seller for specific performance and record a lis pendens against the property to prevent your seller from selling the property to anyone else. Does the first buyer have a case?

According to the court in Frank E. Walsh III, v. Kimberly Abate, Successor Trustee of the 3388 Barrow Island Trust, 47 Fla. L. Weekly D702c (Fla. 4th DCA 2022), the answer is an emphatic NO. In a case with facts very similar to the above paragraph, the court ruled that mere emails between real estate licensees, no matter how specific and detailed, do not create a contract because they do not comply with a basic law dating back to seventeenth-century England: The statute of frauds. The statute of frauds requires all contracts for the sale of real estate to be in writing and signed by the buyer and seller.

Florida has codified the statute of frauds in F.S. 725.01. It states: “No action shall be brought . . . upon any contract for the sale of lands . . . unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.” (Emphasis added). The court added that the statute of frauds should be strictly construed.
Ned Hale

Ned Hale, Esq.

Ned Hale, Esq, is a Florida Board Certified Real Estate Attorney with over 20 years of experience. He has offices in Estero and Fort Myers.

The court noted that in this case the sellers never signed the first buyer’s initial offer, and neither party signed any document reflecting the revised purchase price to $650,000. There was no written agreement signed by both parties as required by the statute of frauds.

The court ruled that unsigned emails or text messages between the agents do not satisfy the statute of frauds. This case should be well received by most licensees. If simple emails between agents had the power to bind their respective clients, then massive liability could result. Don’t you live with enough liability already?

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