Yes, Emails Can Be a Purchase Contract, Even If Seller Has Cold Feet

Question: We looked at a home in Chandler that had an open house. The sale price was $825,000. Our price limit was $750,000, so we didn’t even make an offer. Just like us, however, the seller is from Buffalo, and we had a nice 30-minute conversation with the seller. At the end of the conversation, the seller asked for our email address. Two weeks later, we got an email from the seller offering to “sell us the home for $750,000 with $10,000 earnest money, and no inspections/repairs. Close of escrow in 30 days.” We emailed back and accepted the offer. The seller emailed us back with the name of the escrow company (and the name of the escrow officer) for the delivery of the $10,000 earnest money. We delivered $10,000 to this escrow officer who gave us a $10,000 receipt. The seller now says that, because his listing broker still wants a 3% commission, the seller will not be able to sell the house to us for less than $780,000. We don’t have the down payment money to pay $780,000 for the home. Can we force the seller to sell the home to us for the $750,000 purchase price?

Answer:  Probably. Although A.R.S. § 44-101 (“Statute of Frauds”) generally requires the seller to sign the purchase contract for any sale of a home, there are exceptions to A.R.S. § 44‑101. One exception is part performance by the buyer. Therefore, the emails and your receipt for the delivery of the $10,000 earnest money to the seller’s escrow agent probably resulted in an enforceable $750,000 purchase contract.

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