Ask Kathy: New Form “DELIVERY OF NOTICES ADDENDUM” — (C.A.R. Form DNA)
Q. When the new forms were released in December 2015, I noticed a New Form called Delivery of Notices Addendum; but to me it looked sort of familiar. Is it a form you recommend using? If so, what are the advantages or disadvantages?
A. The Delivery of Notices Addendum (DNA) is a new form; the reason it looks familiar is because, if I recall correctly, it was formerly called the Receipt and Delivery of Notices (RDN). It was less than a popular and was retired years ago. We now a revised version of the RDN; not just a new name but new look as well!
The most important thing to remember is that the DNA is an addendum to the Residential Purchase Agreement (RPA) and as such is an agreement between Buyer and Seller. Its purpose is to establish an understanding and agreement establishing exactly when personal Delivery is achieved.
According the Residential Purchase Agreement, Paragraph 30; a Notice is NOT deemed to have been Delivered, and does NOT become effective, unless and until it is personally received Buyer or Seller or the individual Real Estate Licensee for that principal as specified in the section titled Real Estate Brokers on page 10, regardless of the method used (i.e. messenger, mail, email fax, other).
Determining the moment of personal Delivery is often a challenge; in particular when the recipient party does not initial the CONFIRMATION OF ACCEPTANCE. The DNA allows the principals to establish a predetermined moment in time when Delivery will have been deemed personally received, thereby avoiding confusion and potential disputes.
The following paragraphs establish Delivery of Notices:
Paragraph 2. Mail Delivery: Notice sent by mail shall be deemed received 3 (or_____) Days After proof of mailing, if sent by first class mail or better to the address indicated below.
Paragraph 3. [ ](if checked) E-mail Delivery: Notice sent by email to email address #1 below, shall be deemed received (i) One (or____) Day(s) After the email was sent PROVIDED THAT (ii) A copy of the Notice is sent, on the same date, to e-mail #2, the text number, or fax number specified below.
Paragraph 4. “Notice” as used in this form refers to any notice, disclosure, demand, document, information or other item that Buyer or Seller may or is required to give the other pursuant to the Agreement.
Should the Parties choose to incorporate the DNA into their Agreement this form can be used to eliminate confusion when it comes time to determining the moment of personal receipt.
Now for the Risk / Reward analysis: When the DNA is used there is no wiggle room for establishing the moment of Personal Receipt. For example; if both email recipients named in the addendum experience a “server” failure a Notice could be deemed Delivered without the Parties receiving it. While unlikely, it is possible so there is a risk. On the other hand the reward would be that the Parties both have a firm understanding of the moment when personal receipt is achieved.
While the decision to utilize the addendum is an exercise reserved for the principals; it is clear that the counsel and advice of the real estate professional(s) is of significant value.
Questions? Email them to: Kathy@Compass.com
The foregoing is not to be construed as legal advice. It is for the purposes of real estate brokerage education only.
Regional Director of Risk Management & Education
CalBRE # 00625769
9560 Wilshire Blvd, Ste 200
Beverly Hills, CA 90212