Who should be the point of contact for notices?

Whose contact information should be written in Paragraph 21 of TREC contracts to receive notices?

There isn’t one correct answer to that question. However, you could consider using the buyers’ and sellers’ contact information.

Why? Because time is of the essence in almost all of the notice provisions in TREC contracts, meaning they require action before a strict deadline. Having an agent as the point of contact to receive notices for his or her client could create delays that may result in the party losing a time-sensitive option or right provided in the contract, such as the buyer’s requirement to waive their contingency after the seller accepts a backup contract under the Addendum For Sale Of Other Property By Buyer (TAR 1908, TREC 10-6).

You might be reluctant to use the buyers’ and sellers’ contact info because you think direct contact with the other party is forbidden. However, as long as you’re using the contact information to provide notice to the other party, you’re not crossing the boundary of soliciting another agent’s client.

About Texas Association of REALTORS®

The voice for Texas real estate
This entry was posted in Legal and tagged , , , . Bookmark the permalink.

25 Responses to Who should be the point of contact for notices?

  1. Donna T Baltera says:

    Totally agree
    Our office provides an information sheet to the title company with all of the parties
    contact info as well as the agent’s contact info and the new lender
    It is imperative that the title co have all the information at their fingertips
    Also what if something were to happen to the agents….their clients info should be available to their office and broker as well!

    Like

    • ddavis1038 says:

      I think this paragraph is intended to go way beyond title information sheets which actually have no bearing on or in a contract. The paragraph is for communication between the parties (buyer[s] & seller[s].) Unless a REALTOR is an Agent for service of process (really bad idea to assume this role) of the parties, then the Agent’s information should never go in this spot. In fact, I think one could safely argue that by putting the Agent’s contact information in this spot implies a certain liability or additional duty upon the Agent. Simply put if the buyer contacts the noted person for the seller as outlined in this paragraph, that counts as NOTICE!

      Like

      • Danny Scott says:

        I agree with the assertion that putting the Agent’s information in this paragraph increases his/her liability, especially with time-sensitive issues. However, regardless of whose info is in that paragraph, anytime someone communicates with the representative (either buyers’ agent or listing agent) of the principal, that IS always considered constructive notice. If the agent knows it, the principal is presumed to know it. Putting the buyer or seller’s info in this paragraph instead of the agent’s, will not relieve you of that responsibility.

        Like

  2. Rick DeVoss says:

    I guess I’m looking at it from a different perspective.
    By the time a contract is executed, all of the buyer’s and the seller’s information should be delivered to the title company. Sending it to the Broker is a matter of office policy, but the title company still has contact with the Broker in case the agent gets run over by a truck.
    The main point of this question is what contact info do you provide to the other agent and to the other principle party. I have seen too many cases where either the seller or the buyer have screwed up something by trying to communicate directly with the other party. ~In Texas at least, isn’t that why we “represent” our client…?? So that the two parties do not have to communicate directly with each other? …There are many times when you are still negotiating things long after the execution date.
    And I can think of no reason why the other party’s agent needs to communicate with my client. ~So the real question here is who is going to be responsible to act on any Notice that is required by the terms of the contract…?
    I work with many first time buyers who do not understand the protocols involved in the typical transaction. Some of them do not reply quickly to an email, or even have a printer at home to deal with a document that may need immediate attention. …One has to wonder if the agent cannot be the person to respond to a Notice faster than anyone else in the transaction, what right do they have to collect the whole commission at closing…?

    Like

    • ddavis1038 says:

      Rick, I think you are missing the point with:
      “And I can think of no reason why the other party’s agent needs to communicate with my client. ~So the real question here is who is going to be responsible to act on any Notice that is required by the terms of the contract…?”
      I understand the role of an Agent, but NOTICE is the responsibility of the PARTY, not the Agent. I’m scratching my head to think of, for the purposes of naming it, but I’m fairly certain there are documents or notices that a party might serve upon an opposing party that neither TREC has promulgated or TAR has approved.

      Like

    • Jill Farish says:

      I agree – there are times also that my client does not what his info given to the other party. It’s their privacy and why they go through a Realtor..

      Like

      • Jill Farish says:

        I meant to say I agree with Rick.

        Like

      • Diane Hood says:

        Totally agree and keeps them from contacting after closing. Had a buyer that would not leave my seller alone after closing with petty questions that could have been addressed had he had an inspection which he did not.

        Like

  3. Tim Thornton says:

    Here is the problem with this perspective. Because TAR legal does not write contracts and specifically does not engage in notifications between buyers and sellers, you probably don’t understand that the seller’s email address is not in the MLS. Secondly, when the listing agent uses CSS for their showings, there is no phone number for the seller in the MLS either. So, our Texas contracts and the requirements that we put on our MLS suppliers are not coordinated and there is no required paragraph 21 data in the MLS listing for buyer’s agents to use when writing an offer. As an industry, we are so hung up someone contacting our sellers that this information is not available and when writing an offer, there is no time to contact the listing agent to get this information and most listing agents would not give it anyway. So, unless TAR is going to make a mandatory provision in the MLS for this seller data or require the title company to get this information and provide it to both sides of the contract during the first 3 days of the contract, this kind of article falls on deaf ears and falls into the area of yet another thing that was written without an understanding of how Real Estate actually works in Texas in practice–not theory. This is similar to and related to the use of CSS in Austin, where our scaled down version of CSS is so bad that only about 5-9% of listing agents use it and buyer’s agents hate it because it does not work and it is not flexible enough to notify the seller of changes. The agents who use it, do so because they are afraid of buyer’s agents contacting their seller’s to set up an appointment. And they are afraid that if they don’t sell the house that the seller’s phone number is out there for others to contact “their (former) client” to sell their house. While I don’t like this kind of cold calling behavior, if I can’t sell a listing for what ever reason, the home owner still deserves a chance to sell their home with someone else. And getting that sellers contact information is not rocket science, so this kind of petty protectionism is not helpful and does not met its goal of keeping failed listings out of the reach of cold calling and other brokerages. Maybe it is time we focus on the real problem, agents who are actually engaging our clients who are under contract and trying to get information from the other side of the transaction. If this is what we are trying to protect, that is what we should be focusing on and stop limiting access to information that is needed to fill out a contract properly and stop limiting information that helps the seller sell their home.

    It’s my humble opinion and this is not the first time I have raised this issue with TAR. tT

    Like

    • Richard Ryon says:

      Simple Solution: Fill in the address for Notices to your buyer when making the offer, leave the seller’s area blank for the listing agent to fill in. The listing agent can ask the seller where they want notices sent and fill it in accordingly.

      You are making this way too complicated Tim..

      Like

      • Tim Thornton says:

        I wish I was. I wish life and listing agents were as simple as you seem to think that they are. Leaving something blank for the listing agent to fill in just insures that when you do cancel a contract, you have no place in paragraph 21 to send the notice. Unfortunately, this does not change the law of notification and it does give the agent and seller grounds to argue over where the notice should have been sent. I have written far too many contract to think that trusting the listing agent, who often times does not even execute the contract after they sign it, to do their job here in filling out paragraph 21. I wish it were so, but vast experience in this issue with hundreds of contracts tells me otherwise.

        Like

      • Richard Ryon says:

        (This was written after Tim’s below reply. There was no “reply” button after his entry so I put it here.)
        Tim, where do you think you are going to get the address that the sellers want notices sent to other than the listing agent? The MLS? Who puts it in there? It’s the seller’s choice of where they want notices sent, not anyone else’s. The only way to learn what the seller wants is through their agent.
        I know that P21 is often overlooked by agents. I see it often myself. So I have another Simple Solution for you. Notify the other agent in writing that they have not filled it out. In instances where an agent fails to fill in P21 when executed and again after written notification you are not dealing with a formidable opponent. Tim, they have given you the high ground should a dispute over notification come up.
        Since you have experience with “hundreds of contracts” we can assume you have been in the business long enough to know that there have always been a good number of agents who are not good at dotting the I’s and crossing the t’s. Many good salespeople are not detail oriented. And they can be just as bad filling in MLS fields correctly as they are with contracts. You are not going to change that. We have to work through them though because we cannot contact their clients directly. When they miss P21, notify them in writing, call them too. You will then have the advantage if a dispute arises.
        Yes Tim, I do look for simplicity. Especially when it comes to solutions. There is enough complexity in our work without us adding to it.
        One more Simple Solution then I will stop. Where do you send a notice when the listing agent fails to provide an address? Send it to the listing agent, the property address, and the seller’s address at the county if different from the property address. While I am not an attorney and have never heard of a “law of notification” I bet you will be covered regarding notification, simply.

        Like

      • Richard Ryon says:

        Please disregard the first sentence above. I see how the replies are laid out now.

        Like

  4. Leonard Schwartz says:

    paragraph 21 should read something like “notices should be sent simultaneously to BOTH agent and principle using the following email and physical addresses” :

    Like

    • ddavis1038 says:

      I’m thinking the committee would likely approve this. Have you considered presenting it to them? My only concern here is that it does place an ever so slight additional burden on the consumer (TREC doesn’t generally like these scenarios) of having to send notice to TWO people rather than the one (the way it is now.

      Like

    • Chip in Cypress says:

      think this is brilliant.. alas until then most likely gong to stick with Rick way of thinking.. 19 yrs. the people never change and we have to do more hand holding.. I am the agent for them on behalf of their interest. Their interest my fiduciary. Cheers!

      Like

  5. Rick DeVoss says:

    It sounds like we’ve hit upon an issue that has bugged me for a long time…
    Paragraph 21 of the TREC contract has to be filled in by both Agents, just like any other paragraph with a blank in it. And although I agree it is hard to get the info prior to submitting an offer, I always require the other party’s agent to fill it in before executing the offer and accepting it as complete.
    Since a “Notice” has to be in writing, it is ridiculous to ask for a phone number in that paragraph (21). However, the email address is sufficient, if you don’t wish to use a physical address.
    If, as an Agent of the principle party, I am going to be responsible for all communications regarding the contract, then I want any Notice to come to me first. ~Then I will forward it to the buyer or to the seller, as appropriate.
    It would seem to be perfectly legitimate for the Buyer’s Agent to forward a “Notice” directly to the seller…especially if the seller is occupying the house in question. (…with a copy going to the Seller’s Agent at the same time.)
    I’m not sure what other kinds of “notices” you guys are thinking of, but handling the typical stuff works pretty well this way. I cannot think of anything that a seller has to notify the buyer about that would not fall under the category of using a TREC or TAR form. Those forms should be initiated by one of the agents, anyway. And anything else is purely “informational” in nature, and not a required part of the contract anyway.
    ~What am I missing David…?
    There are several issues in one of our contracts that are the “responsibility” of the party, and not the Agent. (Such as earnest money…) ~But in the real world, most people do not read the contract and understand what they are responsible for, and that is why they pay an Agent to handle things for them, and make sure they don’t get in trouble by missing a deadline, or failing to notify the other party of something important related to the transaction.
    My approach to “representing my client” is very hands on, but it will keep both of you out of trouble.

    Like

    • ddavis1038 says:

      I’ll give you one example of how this Agent contact data in paragraph 21 (ONE TO FOUR RESIDENTIAL CONTRACT) can be a problem. Refer to the (IMHO) most common notice that needs to be given. Termination Notice. You (assuming you are the designated broker of the firm) represent (if you’re not the designated broker of the firm, you do NOT represent either party, representing someone is reserved for the person who is the designated broker of the brokerage-this is to those that like to claim they “represent” a party when they are not the designate broker) the Seller in a transaction. It’s 4:59PM on the last day of the Option Period, and the Buyer sends you the Termination Notice (how many times have you gotten them before the last 10 minutes of the period?) You’re busy handling any one, or a multitude of other tasks (after all you are the designated broker of a firm, likely with multiple Agents you have to deal with. All of a sudden it’s after 5PM (local time where the property is located) and you send the Notice you got at 4:59PM (The buyer can prove they sent it) but you didn’t send it to the Seller (Who notice has to be given to) until after the deadline. In almost every case, the seller is more than likely going to claim that they didn’t get the notice until after the deadline, and now the earnest money belongs to them. They would be right in this assumption. This right/wrong aspect is not very likely to stop the Buyer from ultimately giving demand for, and quite possibly filing suit for return of said earnest money. How many earnest money deposits are you willing to “cover” before we get back to putting the actual party’s information in that blank?

      Like

      • 21. NOTICES: All notices from one party to the other must be in writing and ARE EFFECTIVE WHEN MAILED TO, HAND-DELIVERED AT, OR TRANSMITTED BY FAX OR ELECTRONIC TRANSMISSION AS FOLLOWS: To Seller at: _________
        .
        so doesnt this wording satisfy buyers delivery to seller irregardless of whether the agents/sellers info is in there?

        Like

  6. Jeanette Edwards says:

    I recently attended a class on contracts and the title attorney presenting the class said there is a problem with placing an actual mailing address in the Notices Paragraph. Doing this would mean that all notices are mailed to an address and we know how the USPS mail works sometimes. Depending on when the actual mail was received by either party, there can be an issue with missing deadline dates to comply with the contract – i.e. days to object to the title commitment, survey, HOA documents, etc. I’ve always added a cc to me at my email address so at least I’m aware of anything mailed to my clients. This attorney suggested placing the buyer/seller email address in place of a mailing address. I probably wouldn’t have the seller’s email address if I represent the buyer and that’s ok as I am only concerned about the buyer I represent not missing deadlines. Am I concerned that the seller and/or their agent would have access to the buyer’s email address? No, most information of this kind can be found online.

    Like

    • ddavis1038 says:

      I honestly do not know why so many agents are “scared” to put their client’s information in paragraph 21 of the ONE TO FOUR RESIDENTIAL CONTRACT. That is a contract between a seller(s) and buyer(s). Quit trying to play God with the transaction. That information is for contact to the parties to give notices. Put the party’s contact information in that space (email & phone number) and move on….. An Agent putting their contact information in there can pose a really huge problem should the contract wind up in litigation. Whoever’s information is in paragraph 21 is becoming an agent for service of process. If your not an attorney, that might not be the thing you want to do (not to be confused with due, as in process) here. Even if you are an attorney, it still might not be the thing you want to do…..

      Like

  7. Linda Huggins says:

    If you are doing bank owned property, it is almost always needed to submit a contract. I can not tell you how many time I have had to wait for this information, before I could submit the other realtors contract. Sometimes this delay can cost their client the property. I do not want this information because I want your client, I need it to do my job and to assist you as the buyers realtor,

    Like

  8. Katherine D Harrison says:

    I agree with you Rick. In my vast experience, I have found that transactions proceed much smoother if my contact information is listed. Buyers and Sellers simply do not always understand the various notices and frequently are slow to respond, without their agents’ prompting. Also, when the Seller or Buyer is an elderly person, they are particularly dependent upon their Agent’s guidance.

    Like

    • Leonard Schwartz says:

      I feel it is imperative to send notices (especially termination) to BOTH listing agent and seller… sending it to only the agent does NOT suffice as “delivering to seller /buyer”… you can argue the agents receipt is sufficient… but you may also end up arguing that in a lawsuit

      Like

      • Richard Ryon says:

        Leonard, just as delivery of the option fee to the listing agent is construed as delivery to the seller the same can be true of notices when the agent is listed in paragraph 21. Indeed, the contract does not restrict who a buyer or seller can identify as the recipient for notices. In addition to themselves, notices can be sent in care of their agent, attorney, or uncle Fred if that is who they choose. Sending the notice to whoever is listed in P21 is satisfactory per the contract. However, as the article states, when an agent is listed as the recipient that agent takes on extra responsibility and consequently liability.

        I agree with you that it is a good practice to notify the agent too when their principle is listed in P21. I always CC their agent. But let’s not complicate the contract by requiring extra notifications there. If there are problems in a transaction that results in a suit you can bet you are going to be in it no matter what you put into P21. Increasing notification requirements just gives opposing attorneys one more item to trip you up with.

        Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s