The Appellate Division affirmed the trial court’s holding that oral disapproval of a residential real estate contract where there was actual notice to all parties was sufficient to effectively cancel the contract. This holding echoes the New Jersey State Bar Association’s argument in its amicus curiae filing in the matter of Fitzpatrick v. Qasim, Docket No. A-2812-21, that deviation from the prescribed methods of communication of disapproval of a real estate contract should not be strictly enforced if it can be proven that all parties received actual notice. F. Bradford Batcha and Matthew J. Schiller wrote the brief, and Batcha argued the matter before the Appellate Division.
Like the trial court, the Appellate Division stopped short of authorizing a new form of communication for disapproval of residential real estate contracts. Rather it focused on whether the parties received actual notice and whether that notice was sufficient for disapproval of the contract. It argued that the question was not whether oral disapproval of a contract was sufficient, but rather whether strict enforcement of the notification provision “would result in a significant forfeiture of Seller’s right to review the contract with counsel and disapprove it within the attorney-review period.” (quoting Conley v. Guerrero, 228 N.J. 339 (2017).
In Fitzpatrick, the parties entered into a contract for the purchase of a home in Spring Lake Heights for $1.475 million. Undisputed in the trial court is that the sellers continued to solicit other offers and received a new $2.1 million offer that they intended to accept. The seller’s attorney called the buyer’s attorney and the real estate agent called the broker for the buyers to let them know they intended to accept the new offer. The seller’s attorney drafted, but inadvertently failed to send a letter regarding the disapproval, however, and the buyer’s attorney rejected the letter when it was received after the three-day attorney review period, relying on the attorney review notification provisions that did not allow for an oral disapproval of the contract.
“Here, in the face of actual notice by the buyers’ attorney and realtor that the sellers cancelled the contract during attorney review in order to accept an offer $625,000 higher than that of the buyers, we conclude that Judge Quinn appropriately intervened by excusing the failure of the sellers’ attorney to give written notice of cancellation as required by the contract,” said the Appellate Division. The court further opined that to insist on strict enforcement of the contract would frustrate the overarching purpose of the notification provision and “elevate form over the protective purpose for which the attorney-review provision was adopted in [New Jersey State Bar Association v. New Jersey Association of Realtor Boards, 93 N.J. 470].”
The Attorney Review Clause arose out of litigation in NJSBA v. NJ Ass’n of Realtor Boards, which entered into a consent order that permitted brokers and salespersons to prepare real estate contracts as long as there was an attorney review option to permit buyers and sellers to consult with attorneys prior to finalizing the terms of the contract. The NJSBA did not advocate for an additional means of notification to be added to the attorney review language required to be included in every broker-prepared residential real estate contract. Rather, it underscored the underlying purpose of the attorney review clause and urged any analysis should focus on actual notice, not mean of delivery, in connection with the communication of any disapproval.
NJSBA Advocacy Results in Parole Revocation Representation Being Provided by Office of the Public Defender, Comes Off Madden List
The governor signed into law S3772 (Pou)/A5671 (Atkins), which directs the Office of the Public Defender to provide representation at parole revocation hearings. The law reverses a longstanding prohibition on the Office of the Public Defender to provide legal representation for individuals facing a violation of parole or revocation of parole. Effective immediately, the Office of the Public Defender will establish a unit to provide for legal representation of these individuals.
Until now, these matters were assigned to the Madden list, which directs attorneys to represent litigants who qualify for legal representation in certain matters where there is a right to counsel. The NJSBA has long argued that the Madden system of random assignments to uncompensated counsel be abolished and replaced with publicly funded compensated counsel. In its comprehensive report on the issue, the NJSBA recommended that the Office of the Public Defender be tasked with representing people facing parole revocation.
The Association continues to work with the Judiciary and stakeholders in an effort to abolish Madden assignments. It sees the passage of this legislation as a positive step toward achieving this goal.
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.