Real estate purchase option contract - failure to give written notice = expiration?

[tabs]

Originally Posted by LeeH

Yes, he did call, but would a judge consider that fulfillment of the notification when the contract says he must give written notice?

Your best bet is let the sleeping dog lie...let the option run out where the tenant has no claim.. Time is on your side.

[LeeH]

Originally Posted by tabs

Your best bet is let the sleeping dog lie...let the option run out where the tenant has no claim.. Time is on your side.

That is my thinking, not having heard anything from him recently. Hard to imagine if a lender did agree to finance him tomorrow that he would get it closed in 27 days.

[RANDY P]

Carry that note it's free money and you'll get your rental back in the fairly near future. . Ask for a downpayment, and go.

His heirs likely won't want it.

rjp

[McLovin]

The advice given in threads like this always amply demonstrate why lawyers stay busy.

[john70t]

Originally Posted by tabs

You can bet his attorney would make that argument...and since I have seen judges give the benefit of doubt..it would be a good guess that the judge would give your tenant the benefit of doubt.

Hand the judge a dictionary with a bookmark at the page with the word "written".
Then ask if he/she received their law degree by mail or internet.

You're out of order. He's out of order. The whole court's out of order. Attica. Attica.

[stomachmonkey]

Originally Posted by john70t

Hand the judge a dictionary with a bookmark at the page with the word "written".
Then ask if he/she received their law degree by mail or internet.

You're out of order. He's out of order. The whole court's out of order. Attica. Attica.

OP would be best off checking Arizona statutes.

The law is often not nearly as cut and dry as people think it is.

Notices in a broad legal sense, are used to communicate rights and responsibilities to an interested party. There are different forms of legal notices. Notices in writing are called written notices. However the definition of the term written notice can vary from state to state and even within different areas of law within one state.

An example of a State law defining notice and written notice can be found in Virginia's Landlord Tenant Act Va. Code Ann. § 55-248.4 which states:
"Notice" means notice given in writing by either regular mail or hand delivery, with the sender retaining sufficient proof of having given such notice, which may be either a United States postal certificate of mailing or a certificate of service confirming such mailing prepared by the sender. However, a person shall be deemed to have notice of a fact if he has actual knowledge of it, he has received a verbal notice of it, or from all of the facts and circumstances known to him at the time in question, he has reason to know it exists. A person "notifies" or "gives" a notice or notification to another by taking steps reasonably calculated to inform another person whether or not the other person actually comes to know of it. If notice is given that is not in writing, the person giving the notice has the burden of proof to show that the notice was given to the recipient of the notice.

[john70t]

Originally Posted by stomachmonkey

The law is often not nearly as cut and dry as people think it is.

Amen to that. But it should be...

For instance (major tangent apology in advance), having a girlfriend crash and receive mail at your Canadian home more than three years equals a common in-law marriage. She can demand past housecleaning wages, any monies contributed, or possibly take your own home.
https://globalnews.ca/news/6532711/common-law-vs-marriage/

The paranoid in me first suggests this tenant's kids are possibly setting up a lawsuit.
-Notice 'given'
-Documented for court. AZ is 1-party. https://www.territoriallaw.com/blog/2020/october/one-party-consent-arizonas-wiretapping-law/
-Potential for squatting.

I would still go on good faith in the meantime...show you have good intentions.

First things first. Send a 12mo or whatever lease-renewal letter, and imply a desire to re-rent regardless of him or another party and nothing regarding the existing lease conditions would change. Security deposit held and same rent rate. The time-frame may have slipped his mind as well. I've also had good long-term tenants remind me their lease is up. Get a new lease in writing in the meantime.

The purchase offer is completely separate. No good faith intent has been demonstrated.

[McLovin]

Originally Posted by stomachmonkey

OP would be best off checking Arizona statutes.

The law is often not nearly as cut and dry as people think it is.

Notices in a broad legal sense, are used to communicate rights and responsibilities to an interested party. There are different forms of legal notices. Notices in writing are called written notices. However the definition of the term written notice can vary from state to state and even within different areas of law within one state.

An example of a State law defining notice and written notice can be found in Virginia's Landlord Tenant Act Va. Code Ann. § 55-248.4 which states:
"Notice" means notice given in writing by either regular mail or hand delivery, with the sender retaining sufficient proof of having given such notice, which may be either a United States postal certificate of mailing or a certificate of service confirming such mailing prepared by the sender. However, a person shall be deemed to have notice of a fact if he has actual knowledge of it, he has received a verbal notice of it, or from all of the facts and circumstances known to him at the time in question, he has reason to know it exists. A person "notifies" or "gives" a notice or notification to another by taking steps reasonably calculated to inform another person whether or not the other person actually comes to know of it. If notice is given that is not in writing, the person giving the notice has the burden of proof to show that the notice was given to the recipient of the notice.

That highlighted section is only a definition of a general “notice,” not specifically a “written notice.”
It says that a person can be deemed to have received a general “notice” of a fact if he has actual knowledge of it, or received verbal notice of it, but it does not say that such person will be deemed to have received “WRITTEN notice.”
In the OP’s case, written notice is specifically required by the contract.

[LeeH]

Originally Posted by McLovin

That highlighted section is only a definition of a general “notice,” not specifically a “written notice.”
It says that a person can be deemed to have received a general “notice” of a fact if he has actual knowledge of it, or received verbal notice of it, but it does not say that such person will be deemed to have received “WRITTEN notice.”
In the OP’s case, written notice is specifically required by the contract.

Pretty much my thoughts.

AZ is a state where laws tend to favor the landlord... or at least that's my impression. There are no rent controls here. I hear stories all the time of rent going up hundreds of dollars per month and the tenants have no protection. One of my houses is in a more upscale area that has become increasingly popular. Rents reflect that. People who have rented there for years are finding they can no longer afford that part of town and are being forced to move to cheaper areas.

[stomachmonkey]

Originally Posted by McLovin

That highlighted section is only a definition of a general “notice,” not specifically a “written notice.”
It says that a person can be deemed to have received a general “notice” of a fact if he has actual knowledge of it, or received verbal notice of it, but it does not say that such person will be deemed to have received “WRITTEN notice.”
In the OP’s case, written notice is specifically required by the contract.

For VA at least it appears Notice encompasses Written Notice.

"Notice" means notice given in writing.....

But it seems Written is not a requirement to satisfy Notice.

A person "notifies" or "gives" a notice or notification to another by taking steps reasonably calculated to inform another person whether or not the other person actually comes to know of it.

Notice not Written creates additional burden of proof for the entity giving notice which if they can prove still constitutes valid Notice.

If notice is given that is not in writing, the person giving the notice has the burden of proof to show that the notice was given to the recipient of the notice.


But that's VA.

And my comment was mostly to reinforce OP should make sure he does his due diligence in AZ if he does decide to reach out before the Option expires because as others have noted, he may just make things harder on himself.

[McLovin]

Yes, it says “written” is not required to satisfy a “notice.”
But it does not say “steps reasonably calculated etc” satisfies a “WRITTEN notice.”
There’s a difference.
I don’t know anything about that statute, but that definition reads as a definition of a “notice.”
My guess elsewhere in that statute there is a separate definition of a “written notice.” (Like, a written notice may be a hard copy writing, an electronic mail, etc. But some kind of writing).
But it’s not going to say a written notice may be satisfied by giving an oral notice, or taking steps reasonably calculated to inform the other person” etc.
If that were the case, written notice provisions in contracts would be meaningless.

[stomachmonkey]

Originally Posted by McLovin

Yes, it says “written” is not required to satisfy a “notice.”
But it does not say “steps reasonably calculated etc” satisfies a “WRITTEN notice.”
There’s a difference.
I don’t know anything about that statute, but that definition reads as a definition of a “notice.”
My guess elsewhere in that statute there is a separate definition of a “written notice.” (Like, a written notice may be a hard copy writing, an electronic mail, etc. But some kind of writing).
But it’s not going to say a written notice may be satisfied by giving an oral notice, or taking steps reasonably calculated to inform the other person” etc.
If that were the case, written notice provisions in contracts would be meaningless.

Here's the whole thing.

https://law.lis.virginia.gov/vacodepopularnames/virginia-residential-landlord-and-tenant-act/

What I posted is the entirety of anything pertaining to Notice.

Now it is specific to Landlord / Tenant notices in the State of VA but OP is the LL and buyer is his tenant.

I'm not an attorney but in my line of work we have a saying, "we start every relationship with a handshake and end it with a **** you".

I've been party to enough litigation over the years to have learned that the outcome often has nothing to do with who was truly right but rather who had the better attorney that day.

Be honest, if the buyer were your client you wouldn't try to argue my point? Or can you say for certain no attorney wouldn't?

And that's the point. Lee doesn't know the intricacies of what constitutes Notice in AZ and without competent council may be opening himself up for trouble should the buyer decide he has been wronged and finds some ambulance chaser who will happily take the buyers money to make Lee's life miserable.

Lee is trying to be a Mensch and I admire and respect that but there is that other saying, no good deed goes unpunished.

Lee should STFU and let the buyer dig his own grave.

[sc_rufctr]

Originally Posted by LeeH

... he'll buy it for around $50K under the current market value.

Thoughts?

Pull out NOW! ... Do whatever you need to do to get out of the deal.

And he's claiming he can't get finance??? Have you seen some of the people that the bank will lend money to?

[stomachmonkey]

Originally Posted by sc_rufctr

Pull out NOW! ... Do whatever you need to do to get out of the deal.

And he's claiming he can't get finance??? Have you seen some of the people that the bank will lend money to?

Not in the US at the moment.

I decided not to move this year so putting in a pool.

Figured do a cash out refi since I have 80% equity in my home and with the current lower rates can pull the cash I need out AND lower my mortgage. I also have stupid excellent credit and enough cash on hand where Ican retire comfortably today but I'm not ready for it yet.

Really they should have shown up at my house with a briefcase of cash 5 minutes after I initiated the process begging me for my business yet they still put me through the ringer harder than any other time in my life.

[KFC911]

Originally Posted by sc_rufctr

Pull out NOW! ... Do whatever you need to do to get out of the deal.
...

This is an interesting thread ....

When I "make a deal", I'm a man of my word, and will do what I said I would do within reason. I will never look for a technicality as a way to get out of the deal I made either. That makes me a lousy LL and business man to some perspectives, but I simply do not care about $$$ that much. I sleep well at night and am financially secure .... retired from the corporate gig 14 years ago (at 48) and never looked back. Life has never been about $$$ for me .... or I would surely have approached things differently along the journey.... but that's just me.

If I were in Lee's position, I'd do nothing and say nothing, hoping the tennant doesn't come up with the financing to purchase, but if he did, I'd do what I said I would do, and not look for an "escape clause". Am I a sucker for being like this?

Don't know and don't care ....

That's just how I roll ...

[sc_rufctr]

I'll keep this short... Fifty thousand dollars is a lot of money and the tenant didn't do what he said he was going to do.

And he had plenty of time.

[G60SuperCharger]

Don't contact him about extending the lease. By law in the three states I landlord in (CA, NC, and TN) when a lease expires without a vacate notice from either party, it automatically extends to a month to month lease under the same terms and rental rate as the previous lease.

That said, I would show up with a new lease for him to sign the day after the option contract expires. In the meantime keep silent.

[LeeH]

Originally Posted by KC911

This is an interesting thread ....

When I "make a deal", I'm a man of my word, and will do what I said I would do within reason. I will never look for a technicality as a way to get out of the deal I made either. That makes me a lousy LL and business man to some perspectives, but I simply do not care about $$$ that much. I sleep well at night and am financially secure .... retired from the corporate gig 14 years ago (at 48) and never looked back. Life has never been about $$$ for me .... or I would surely have approached things differently along the journey.... but that's just me.

If I were in Lee's position, I'd do nothing and say nothing, hoping the tennant doesn't come up with the financing to purchase, but if he did, I'd do what I said I would do, and not look for an "escape clause". Am I a sucker for being like this?

Don't know and don't care ....

That's just how I roll ...

I don't think the wording of the notice clause is a technicality, as much as it is just part of the contract... what you have to do if you want to consummate this deal. A technicality could be to say I'm refusing to sell to him because he failed to provide me a copy of his renter's insurance policy "within 10 days of acceptance" as stated by the contract, which, he did not. My pov is the written notice is a fundamental part of the contract... sort of like the expiration date; the insurance is trivial.

While $50K is not going to make me or break me, this house represents an income stream for me and if you carry that cash flow out for the next 30 years, plus appreciation, then there's quite a bit more on the line. As I state earlier, I was mentally prepared for him to buy and take the loss. Had that happened, I would 1031 into another property. Something that's easier said than done in the current market.

[nota]

WHY TRY TO GUESS A PRICE YEARS FROM NOW

i understand options
but why fix a price/guess

just allow a offer at current market price say 110% of loan value
with some allowance for rent paid as a credit for a downpayment ?

[Geronimo '74]

Originally Posted by LeeH

That is my thinking, not having heard anything from him recently. Hard to imagine if a lender did agree to finance him tomorrow that he would get it closed in 27 days.

Let it die out or refuse the deal based on your mutually agreed terms not being met.
50K is a lot to give away.
Or agree to a new current market value and preceed.