Colorado Brokers – Caution with Electronic Counteroffers

Rice Insurance Services Center (RISC), a division of AssuredPartners NL, LLC, administers the Colorado Real Estate Commission’s group real estate errors and omissions policy.  We manage claims made against Colorado real estate brokers, giving us insight into current issues brokers face.  Recently, we have seen a trend in claims relating to electronic counteroffers.

Technology can make real estate transactions move more quickly and conveniently than in the past, but it also comes with new risks.  For example, it can be more difficult to review terms in electronic documents, especially if checkboxes automatically pull or omit information. 

What Could Go Wrong

Imagine you represent a seller who receives a $500,000 offer but wants to counter at $550,000 without conveying the dining room chandelier.  You prepare the counteroffer electronically, inserting $550,000 in the purchase price field and “Dining room chandelier will not convey.  Seller will not replace with another fixture.” in the Attachments field. 

However, you do not notice the box is checked next to “Remove Purchase Price and Terms.”  Because this is checked, the seller’s desired price is not included in the counteroffer when it is electronically transmitted to the buyer’s broker.  The only change visible to the buyer’s broker is the chandelier.  The buyer is fine with that – the chandelier is not to his taste anyway – so he electronically signs the counteroffer with no change to the initial price. 

Both you and the buyer are surprised when the draft closing statement lists the purchase price as $500,000 instead of $550,000.  The seller is upset and says he would never have accepted $500,000.  The buyer will not agree to pay more and says he would never have agreed to $550,000. 

Takeaways

This issue has led to real claims against Colorado real estate brokers.  It’s important to carefully review all fields in electronic forms and consider whether or not any boxes should be checked or unchecked, even if they automatically default one way or the other.  You may also want to send an email to the other broker outlining the intended changes and asking for confirmation these are reflected in their electronic version.  This could help document the parties’ intent if a discrepancy is discovered.  Taking time to double and triple-check electronic forms before sending may prevent a huge headache later.