What Can I Do if A Listing Agent Refuses to Provide a Copy of the Offer Signed?

Full question:

My husband and I are attempting to relocate to be closer to our jobs, and made a standard written offer on December 6, 2009 on a short sale property in Murrieta. CA. for $253,000. with an escalator clause to top any offer by $500., up to $260,000. We have retained a wonderful buyer's agent to represent us, who is extremely professional and ethical. The offer that we made was slightly higher than the median of sales for the neighborhood. The seller's listing agent who works for a brokerage firm named HomeSmart informed our agent by phone that our offer had been accepted on December 13th. We then asked for an opportunity to examine the property in detail, and we were given that opportunity by the sellers on December 14th. Our agent immediately began requesting by phone and e-mail a copy of our signed offer so that we could verify the date of signing, price agreed to, and check that all details matched our original copy. Finally on December 22nd, our agent received a call from the listing agent in which he stated, '...I got the offer signed and have sent it to the bank.' When our agent requested a copy, he said he guessed he could do that. On December 24th, our agent forwarded a e-mail from the the listing agent (which I have printed out and retained) that stated, '...Yes! I have the paperwork signed...' He went on to plead a knee injury, and promised to send us a copy of the signed agreement on Monday, December 28th. To make a long story short, subsequent calls and e-mails (which our agent and I have been time-lining and printing out) from the listing agent have all verified the supposed signed contract, but have pleaded excuses such as illness, family celebrations, injury, the bank is closed, and illness again, when our agent requested a copy of the signed offer. Beginning, January 4, 2010, the listing agent began to ignore our agent's calls and e-mails. She phoned the two brokers who own HomeSmart, but they have not returned phone calls as of January 8, 2010. Our agent said there is a failure to perform document that could be sent to the seller, but that she was reluctant to use this because the problem doesn't appear to be the family selling the property, but the agent. I believe that this agent may have never had a signed contract or never sent it to the bank. My husband and I are livid, because we feel that our offer has been used to drum up interest, or is being shunted aside because he found his own client and does not want to share the commission with our agent. I believe that he thinks we will just go away if he stalls, but my husband and I want to hold the listing agent and brokerage firm accountable for what we believe is unethical and unprofessional behavior. Our agent is going to make one more attempt to deal directly with the two brokers on Monday, January 11th, but if this gathers no results, we will file a complaint with the California Department of Real Estate. Is this effective, and what other recourse do we have? Another problem that we have is that we have an extremely desirable property in Corona that we must sell to fund this purchase. What is our liability if Homesmart all of the sudden informs us it has been approved, and we have to move in 30 days, without ever having provided us with a copy of the contract? Our agent says that because it was not signed by the sellers within 3 days, this makes the contract null and void. How can we protect ourselves?

• Category: Real Property
• Subcategory: Sales
• Date: 04/07/2025
• State: California

Answer:

A substantial misrepresention in the sale of real estate by a real estate licensee is prohibited by CA statutes. You may wish to file a complaint at the link provided below. Should delivery of any of the required disclosures or an amended disclosure occur after execution of an offer or of a purchase agreement, the buyer has three days after delivery of the disclosure in person or five days after delivery by deposit in the United States mail to terminate the offer or the agreement by delivering a written notice of termination to the seller or the seller’s agent. Unless an appropriate exemption applies, a real estate broker who solicits or negotiates loans on behalf of borrowers or lenders to be secured directly or collaterally by liens on real property must deliver a written disclosure statement to the borrower. The statement is to be delivered within three business days of receipt of the borrower’s written loan application or before the borrower becomes obligated to complete the loan, whichever is earlier. Should delivery of any of these disclosures or an amended disclosure occur after execution of an offer or of a purchase agreement, the buyer has three days after delivery of the disclosure in person or five days after delivery by deposit in the United States mail to terminate the offer or the agreement by delivering a written notice of termination to the seller or the seller’s agent.

After making the inspection, if the owner finds no defects or malfunctions, the owner must provide a written statement to the buyer disclaiming knowledge of any defects or malfunctions.

If the required disclosure of defects is delivered to the prospective buyer after he/she has executed an offer to purchase, the buyer has three days after personal delivery of the disclosure statement or five days after delivery by deposit in the mail to terminate the offer. The termination must be by written notice to the owner, subdivider, or the broker(s)/agent(s) of the owner or subdivider. Any disclosure delivered after the prospective buyer has signed an offer to purchase must contain a statement describing his/her rights, methods, and the time to rescind. Any person who willfully fails to carry out the requirements of this law will be liable for any actual damages suffered by the buyer.

I suggest having a local attorney review all the facts and documents involved. Please see the following statute:

10176. The commissioner may, upon his or her own motion, and shall,
upon the verified complaint in writing of any person, investigate
the actions of any person engaged in the business or acting in the
capacity of a real estate licensee within this state, and he or she
may temporarily suspend or permanently revoke a real estate license
at any time where the licensee, while a real estate licensee, in
performing or attempting to perform any of the acts within the scope
of this chapter has been guilty of any of the following:
(a) Making any substantial misrepresentation.
(b) Making any false promises of a character likely to influence,
persuade or induce.
(c) A continued and flagrant course of misrepresentation or making
of false promises through real estate agents or salespersons.
(d) Acting for more than one party in a transaction without the
knowledge or consent of all parties thereto.
(e) Commingling with his or her own money or property the money or
other property of others which is received and held by him or her.
(f) Claiming, demanding, or receiving a fee, compensation or
commission under any exclusive agreement authorizing or employing a
licensee to perform any acts set forth in Section 10131 for
compensation or commission where the agreement does not contain a
definite, specified date of final and complete termination.
(g) The claiming or taking by a licensee of any secret or
undisclosed amount of compensation, commission or profit or the
failure of a licensee to reveal to the employer of the licensee the
full amount of the licensee's compensation, commission or profit
under any agreement authorizing or employing the licensee to do any
acts for which a license is required under this chapter for
compensation or commission prior to or coincident with the signing of
an agreement evidencing the meeting of the minds of the contracting
parties, regardless of the form of the agreement, whether evidenced
by documents in an escrow or by any other or different procedure.
(h) The use by a licensee of any provision allowing the licensee
an option to purchase in an agreement authorizing or employing the
licensee to sell, buy, or exchange real estate or a business
opportunity for compensation or commission, except when the licensee
prior to or coincident with election to exercise the option to
purchase reveals in writing to the employer the full amount of
licensee's profit and obtains the written consent of the employer
approving the amount of the profit.
(i) Any other conduct, whether of the same or a different
character than specified in this section, which constitutes fraud or
dishonest dealing.
(j) Obtaining the signature of a prospective purchaser to an
agreement which provides that the prospective purchaser shall either
transact the purchasing, leasing, renting or exchanging of a business
opportunity property through the broker obtaining the signature, or
pay a compensation to the broker if the property is purchased,
leased, rented or exchanged without the broker first having obtained
the written authorization of the owner of the property concerned to
offer the property for sale, lease, exchange or rent.
(k) Failing to disburse funds in accordance with a commitment to
make a mortgage loan that is accepted by the applicant when the real
estate broker represents to the applicant that the broker is either
of the following:
(1) The lender.
(2) Authorized to issue the commitment on behalf of the lender or
lenders in the mortgage loan transaction.
(l) Intentionally delaying the closing of a mortgage loan for the
sole purpose of increasing interest, costs, fees, or charges payable
by the borrower.
(m) Generating an inaccurate opinion of the value of residential
real property, requested in connection with a debt forgiveness sale,
in order to do either or both of the following:
(1) Manipulate the lienholder to reject the proposed debt
forgiveness sale.
(2) Acquire a financial or business advantage, including a listing
agreement, that directly results from the inaccurate opinion of
value, with regard to the subject property.

Please see the information at the following links:

http://www.dre.ca.gov/pub_disclosures.html#_Toc122939778
http://www.dre.ca.gov/pub_re5.html
http://dre.ca.gov/cons_complaint.html
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=bpc&group=10001-11000&file=10175-10185

Any claim you may have relating to lease will likely be governed by contract law. The terms of your contract with the other parties will generally determine your rights and obligations as well as those of the other parties. You should carefully review the terms of the contracts involved to determine your rights and obligations in regard to the sale. If you wish to use the legal system to resolve your dispute, you may want to review the following general information regarding contract law and breach of contract actions:

When a time period for performance isn't stated, the courts will often imply a "reasonable" time. Reasonable is a subjective determination, based on all the facts and circumstances involved. The general rules of contract law follow a hierarchy of evidence when determining the terms of a vague or incomplete contract, as follows:

a) The terms stated in the discussions and writings exchanged by the parties that don't contradict the contract terms;

b) Terms implied by the current and past conduct of the parties;

c) Terms implied by industry custom and practice; and

d) Terms implied by applicable law, i.e., damages for breach, liability for negligence, jurisdiction and venue, etc.

Contracts are agreements that are legally enforceable. A contract is an agreement between two parties that creates an obligation to do or refrain from doing a particular thing. The purpose of a contract is to establish the terms of the agreement by which the parties have fixed their rights and duties. An oral contract is an agreement made with spoken words and either no writing or only partially written. An oral contract may generally be enforced the same as a written agreement. However, it is much more difficult with an oral contract to prove its existence or the terms. Oral contracts also usually have a shorter time period within which a person seeking to enforce their contract right must sue. A written contract generally provides a longer time to sue than for breach of an oral contract. Contracts are mainly governed by state statutory and common (judge-made) law and private law. Private law generally refers to the terms of the agreement between the parties, as parties have freedom to override many state law requirements regarding formalities of contracts. Each state has developed its own common law of contracts, which consists of a body of jurisprudence developed over time by trial and appellate courts on a case-by-case basis.

An unjustifiable failure to perform all or some part of a contractual duty is a breach of contract. A legal action for breach of contract arises when at least one party's performance does not live up to the terms of the contract and causes the other party to suffer economic damage or other types of measurable injury. A lawsuit for breach of contract is a civil action and the remedies awarded are designed to place the injured party in the position they would be in if not for the breach. Remedies for contractual breaches are not designed to punish the breaching party. The five basic remedies for breach of contract include the following: money damages, restitution, rescission, reformation, and specific performance. A money damage award includes a sum of money that is given as compensation for financial losses caused by a breach of contract. Parties injured by a breach are entitled to the benefit of the bargain they entered, or the net gain that would have accrued but for the breach. The type of breach governs the extent of damages that may be recovered.

Restitution is a remedy designed to restore the injured party to the position occupied prior to the formation of the contract. Parties seeking restitution may not request to be compensated for lost profits or other earnings caused by a breach. Instead, restitution aims at returning to the plaintiff any money or property given to the defendant under the contract. Plaintiffs typically seek restitution when contracts they have entered are voided by courts due to a defendant's incompetence or incapacity.

Rescission is the name for the remedy that terminates the contractual duties of both parties, while reformation is the name for the remedy that allows courts to change the substance of a contract to correct inequities that were suffered. In order to have a rescission, both parties to the contract must be placed in the position they occupied before the contract was made. Courts have held that a party may rescind a contract for fraud, incapacity, duress, undue influence, material breach in performance of a promise, or mistake, among other grounds.

Specific performance is an equitable remedy that compels one party to perform, as nearly as practicable, his or her duties specified by the contract. Specific performance is available only when money damages are inadequate to compensate the plaintiff for the breach.

Promissory estoppel is a term used in contract law that applies where, although there may not otherwise be an enforceable contract, because one party has relied on the promise of the other, it would be unfair not to enforce the agreement. Promissory estoppel arises from a promise which the promisor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promisee and which does induce such action or forebearance in binding if injustice can be avoided only by enforcement of the promise. Detrimental reliance is a term commonly used to force another to perform their obligations under a contract, using the theory of promissory estoppel. Promissory estoppel may apply when a promise was made; reliance on the promise was reasonable or foreseeable; there was actual and reasonable reliance on the promise; the reliance was detrimental; and injustice can only be prevented by enforcing the promise. Detrimental reliance must be shown to involve reliance that is reasonable, which is a determination made on an individual case-by-case basis, taking all factors into consideration. Detrimental means that some type of harm is suffered.

Reasonable reliance is usually referred to as a theory of recovery in contract law. It was what a prudent person might believe and act upon based on something told by another. Sometimes a person acts in reliance on the promise of a profit or other benefit, only to learn that the statements or promises were either incorrect or were exaggerated. The one who acted to their detriment in reasonable reliance may recover damages for the costs of his/her actions or demand performance. Reasonable reliance connotes the use of the standard of an ordinary and average person.