The Downside of Voicemail and Email

By James L. Goldsmith, Esquire

Consider this example.  A buyer makes a written offer on a $600,000 residence. Before the listing agent meets with the seller, he takes a call from a cooperating agent who asks a question about an entry on the seller disclosure statement.  It is obvious that the listing agent has a buyer who is also interested in the purchase and the buyer agent says as much.

When the seller and listing agent sit down to review the offer, the seller asks if the listing agent thinks there is any other interest in the property.  The offer is slightly low, but the seller is inclined to accept it assuming there is nothing better waiting in the wings.  The listing agent reveals what he knows about the recent inquiry and tells the seller that another offer may be forthcoming.  The seller, thinking that a bird-in-the-hand is better than one-in-the-bush, signs the offer and tells his agent to deliver it.

As the agent is driving back to the office, seller’s remorse sets in.  The seller calls his listing agent but the agent is on the phone or either too busy to take the call.  The seller’s voice message instructs the agent not to deliver the offer until late in the day, to give buyer #2 a bit more time to consider making an offer.

Though the voicemail is there for the listing agent to retrieve, he doesn’t do so.  Instead, he heads out to the office of the buyer agent to deliver the signed agreement.  He barely has time to pause and buy a polish sausage from a street vendor for a two-second lunch!  Also, unbeknownst to the listing agent is what awaits in his email inbox.  There sits an email from buyer agent #2 stating that he’s bringing a written offer to the listing agent in the early afternoon!

So, how much more is the offer from buyer #2?  If it is lower, our listing agent is off the hook.  But what if it is higher?  What if it is substantially higher?  In a real-life case in which I was involved, the second offer was over $400,000 higher!!

How do we balance our duty to our clients with the demands and practicalities of real life?  Are we obligated to check our phone messages every hour, half hour, 15 minutes or every minute?  And how about our email?  Are we required to be on duty 24/7?  Can we take vacations?

I think that it is unreasonable for a client to assume that you will take note of an email or telephone call within minutes of its arrival.  That very same client may expect you to turn off your phone and not glance at it every three minutes to see whether another message has been received.  Yet, the technology that allows for near instant communication exacts a price and we do have some obligation to heed its call.

To the best of my knowledge there is no appellate decision that has imposed a duty to observe technology.  Obviously, any case will be decided on the facts and it is doubtful that any clear rules can ever be annunciated.  Burt setting reasonable expectations can help.  Your client should at least understand that if an emergency arises, routine email or phone messages may not suffice.

Here is wishing you a restful and phone-free vacation.

Mr. Goldsmith is an attorney with Caldwell & Kearns and serves as general counsel to PAR. A substantial portion of his practice is dedicated to providing advice and counsel to real estate licensees and representing and defending real estate salespersons and brokers in civil lawsuits and licensing claims across the Commonwealth. He routinely counsels employers on employee relations issues as one of the voices of the PAR Legal Hotline. He may be reached at realcompliance.com.