Written communication protocols are a signal of professionalism that helps you stand out, writes attorney Kelly Rees Murray. Implement these five easy fixes to keep your emails and texts contract-free.
“I’m glad we were able to come to an agreement,” the buyer texted. The builder’s brother replied, “Me too…”
Those eight words forced the sale of a $2.8 million luxury home in Pearl v. Grant. In 2024, the Montana Supreme Court ruled that several unofficial documents regarding disputed construction costs met the statute of fraud, constituted an enforceable contract, and barred buyers from fighting to keep the property.
But the dissenting judge in Pearl emphasized that the builder brothers were merely “consultants” with no binding obligations.
Perl’s results worsened further after the 2024 National Association of Realtors Commission Settlement removed the compensation offer from the MLS. Currently, buyer and agent compensation is done via email and text, along with concessions and other important terms. Do such electronic communications create an enforceable contract?
Reasons for losing previous protection
Under California fraud charges, text alone is not sufficient to form a real estate contract without written confirmation. However, courts in other states have held that emails and text messages can form enforceable contracts under fraud and contract doctrine. As the Massachusetts and Florida cases demonstrate, three de facto gaps have repeatedly occurred in the past that have prevented contracts from being concluded.
In the 2016 case St. John’s Holdings v. Two Electronics, the Massachusetts Land Court held that a broker’s first name entered at the end of a text message met the signature requirement under the state’s fraud charges. The seller subsequently won an appeal in 2017 because the broker was not bound.
In Walsh v. Abate, a 2022 Florida Court of Appeals held that unsigned electronic messages between a home seller’s agent and a prospective buyer “accepting” a list price offer constitute fraud. The seller’s agent texted the seller, “We accept $3.4 million,” and the buyer’s agent texted back, “Perfect and confirmed. Thank you!” The seller’s agent even sent an email saying the seller “thanks for your patience and accepts $3.4 million.”
A few days later, the seller accepted another offer. Because no written agreement was signed by both parties, the court recognized on appeal that these electronic messages were negotiations that were not binding on anyone. But they led to costly litigation.
Since the NAR settlement, these de facto gaps that have impeded the deal are being resolved.
Missing important terms: In the past, electronic messages were often missing price, closing date, and property description, but agents are now negotiating important terms via email or text. No signature: Previously, many electronic messages did not include a name. However, UETA (Uniform Electronic Transactions Act) treats entered names as electronic signatures, and agents now routinely electronically sign emails and texts. No authority to bind principals: Although standard listing agreements give agents the authority to sell properties rather than contract on behalf of sellers, agents often work directly with unrepresented principals, such as FSBO sellers or unrepresented buyers.
5 safeguards for all your texts and emails
Each of these safeguards is a small change in your digital habits. Each court targets contract elements that state courts commonly examine when determining whether an email or text forms an enforceable real estate transaction (see chart above). Please go through all five this week with your managing broker before using it.
Use non-binding disclaimers for substantive messages. The North Carolina Real Estate Commission (2021 eBulletin “Broker’s Email May Prove Binding!”) advised brokers to state that “this email or text does not create an acceptance or a binding contract.” Flag at least one important term as still unresolved. If the electronic communication is about pricing or concessions, leave something clearly open: “Deadlines, emergency inspections, and financing terms are still under consideration.” If one important term is not truly determined, the contract will usually remain unenforceable. We confirm the accuracy of the disclaimer and disclaim any binding force. Before adding, “I do not have the authority to bind clients via email or text message. All agreements must be signed in writing by the client,” make sure this statement is true in the actual listing or buyer-broker agreement. Standard and non-standard forms may address this differently than power of attorney documents. Include an integration clause in your written contract. 2025-2026 GAR Purchase and Sale Agreement Section c.4(f) states that this Agreement “shall not be deemed to be mutually severed or waived except by the written consent of the parties.” Ask your managing broker if equivalent language exists or if it is required by special regulations in your state. Recognize when the “buffer” between agents becomes thinner or disappears. Seth Wiseman, general counsel for Georgia Realtors, said text messages between agents are “nothing but noise.” That buffer is thinner in states without comparable contract language and disappears when the message recipient is an unrepresented principal, such as a FSBO seller or an unrepresented buyer. In that case, safeguards 1 to 4 are especially important.
Consider educating clients about safety measures in listings and buyer presentations. Written communication protocols are a signal of professionalism that will help you stand out.
Under the NAR settlement, brokers and agents cannot avoid electronic messages about important terms, and three de facto gaps that prevented deals from closing in past cases (omitted price or deadlines, unsigned messages, and non-binding brokers) are being eliminated.
Before you send your next text, make sure safeguards are in effect in your state before a routine text forms a contract you probably didn’t intend or leads to a lawsuit over whether a contract was formed.
Trial Attorney Kelly Rees Murray is a Harvard-trained attorney and former professor at Vanderbilt University. She co-founded VettingTheHouse.com and DivorceThisHouse.com. Connect with us on YouTube and LinkedIn.
