Can you sell your home by email?](

Back to Can you sell your home by email? **Can you sell your home by email? **

November 11, 2011
Mark Weisleder

Be careful what you say in an email about the purchase or sale of a house.
Over the course of three days last October, Marc Girouard and Kelty Druet corresponded by email about the sale of Druet’s condo in downtown Moncton, N.B.
After a series of emails and an offer and counter offer, Druet agreed to sell unit 203 at 850 Main St. for $155,000, or so Girouard thought. But Druet changed her mind and the case landed up in court.
There a judge decided that even though a formal agreement of purchase and sale was not ever signed, a deal was a deal. Since Ontario has similar laws to those relied on in New Brunswick, the same result could happen in Ontario.
Here is what happened:
October 22, 2010: Girouard was looking on Kijiji for a condo to rent and found the unit listed there. He spoke to the tenant who passed him on to Druet. They spoke and discussed the possibility of him buying the condo and agreed to carry on their discussions through email.
October 24, 10:56 a.m. Druet sends Girouard this email: “After giving the idea of selling my condo some more thought, I have come to a decision. I would sell it to you for $160,000, conditional that you take over the mortgage and pay the legal fees associated with the purchase. (I estimate at $800.) Please let me know your decision.
October 24, 12:16 p.m. Girouard replies: “Thank you Kelty. I will meet you half way @155,000.00 and pay legal fees and assume existing mortgage.”
October 25, 2:57 p.m. Druet: “Sorry for the late reply — I’ve been thinking about it. I will accept your offer. How would you like this to go?”
**October 25, at 3:33 p.m. **Girouard: “Great, are you in Moncton any time soon? I can have a sales and purchase agreement drafted for your review. Is a November 15 closing acceptable so not interfere with your tenants, that I am told are vacating on that date? Is the mortgage holder a Moncton or Halifax bank?”
October 25, 6:37 p.m. Druet: My partner has been in Peru the last few days and I just got to speak with him. He was not agreeing with the price so I am sorry but I cannot sell to you.
Girouard replied he had a deal and would not release Druet from the contract. The case went to court in Moncton and the decision was given on August 9, 2011.
The judge decided that if these emails were actually written and signed, they would constitute a binding agreement. He noted that the Internet and emails have become a way of life for business and individuals. Even though such things as the closing date had not been settled, he still found that there was a basis for a legally binding agreement.
In Ontario, the Electronic Commerce Act, which governs the electronic signing of documents, is confusing when it comes to the legality of signing agreements for the sale of land, so it is possible that in Ontario the result of this case may have been different. I am not so sure.
The lesson here is clear. Be very careful what you write in an email regarding any sale or purchase of a home. Also, if you are sending any notice in a real estate deal via email, always ask for confirmation of receipt from the other side. You may not find out that the email has hit someone’s spam file until you have missed an important time deadline.
Remember to always have the advice of an experienced real estate agent or lawyer before doing anything by yourself. In this case, the seller did not want to sell their condo but had to do so, based on this very simple exchange of emails. Do not let this happen to you.
Mark Weisleder is a lawyer, author and speaker to the real estate industry. Contact Mark at

Fantastic! I agree completely with the judge’s ruling. It about time someone used some backbone and nailed these jerks to the wall. His mistake was not informing the potential purchaser that there was another person involved that had say in the matter, and he could not speak on his behalf.

The same principle applies when I book an inspection online. I send an email confirming all the details of the transaction, including the PIA, and I require them to reply via email their agreement to all terms. An appointment is not “set in stone” until I receive the email reply. If they have any further questions or concerns, they are hashed out long before the inspection takes place.

Creating contracts by email - “written” doesn’t always mean "in writing"

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Two recent court decisions (one Canadian, one American) serve as useful reminders that binding contracts and assignments of rights can be created via exchanges of emails almost as easily as they can be created by “written” documents. In the entertainment industries, which sometimes exhibit fast-moving and casual interactions in which the intention of the parties to create binding contractual commitments is not always clear, it is worth being cognizant about the fact that email communications can bind you to a deal.
As Mark Weisleder notes in the Toronto Star (Can You Sell Your Home by Email?), a recent court decision in New Brunswick has held that a binding contract for the sale of real property (in this case a condominium) can be created via email exchange (it should be noted that leave to appeal has been granted by the Court of Appeal of New Brunswick).
In the United States, the Court of Appeals for the 11th Circuit (Hermosilla v The Coca-Cola Company]( has confirmed that copyright can be transferred by exchanged emails which constitute a contract. In Hermosilla, it was held that copyright in Spanish lyrics crafted by the plaintiff had been transferred to the defendant because the exchanged emails constituted a binding agreement, even though the parties intended to enter into a long-form written contract but never actually did so. (The Property, Intangible blog has a nice overview of the Hermosilla case - hat tip: Clancco)
Students of Canadian copyright law might query whether these decisions are of relevance to Canadian copyright questions - doesn’t Section 13(4) of the Copyright Act (Canada) require transfers of copyright to be “in writing”? The Act states that “no assignment or grant is valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made”. The question of relevance will be answered by reference to provincial/territorial legislation: in Ontario, for example, the Electronic Commerce Act]( stipulates that “a legal requirement that information or a document be in writing is satisfied by information or a document that is in electronic form if it is accessible so as to be usable for subsequent reference” (Section 5) and also clarifies that “a contract is not invalid or unenforceable by reason only of being in electronic form” (Section 19(3)).
Exchanging emails is often useful because it can assist in providing a documentary record of discussions between the parties - but parties should be careful not to inadvertently create a binding contract (whether or not involving a transfer of copyright).