My sellers wanted to rescind the PSA recently and so we went about submitting a form 51 signed by sellers to buyers and they rejected and said they will be preceding with purchase per contract terms. This was by email and no signatures needed since they simply didn’t sign the rescission addendum. Sellers have attained legal counsel and decided to proceed with sale and now want to make sure buyers don't have unilateral standing ability to sign rescission document right before closing and get their EM back since it's pretty much hard EM after this coming Friday and so we want to close the loophole if buyers aren't going to agree early in the deal here this week.
There isn't a withdrawal form like there is for offers and counteroffers but I could probably use that same form to document if needed by modifying the verbiage and attaching form OR is it acceptable to have specific performance of buyers email documenting rejection of the rescission, depositing em, and also then waiving 35R inspection contingency this week. Does the form 51 remain Live and buyers could sign anytime? Can I/ should I use form 36A to withdraw the form 51 rescission?
If sellers have legal counsel, sellers should ask their lawyer what steps are necessary to protect seller's interests in this situation. There are any number of possible outcomes.
Most likely, seller's delivery of a rescission agreement would be considered an offer to rescind. Form 21 says that any offers or counteroffers made by either party expire two days after delivery if no other expiration date is specified. If this was an offer to rescind, it probably expired two days after seller's delivery of the rescission agreement to buyer, if it was not terminated by buyer's action.
It is possible that an email from buyer's broker rejecting the rescission agreement also terminated seller's offer to rescind.
The rescission agreement is not drafted like an offer, however, and there is room for argument that somehow, the seller's rescission agreement should be treated as something other an "offer". The safest approach for broker to take is to use a Form 36A and formally, with seller's signature, withdraw the "offer to rescind". That should eliminate any question that may be remaining.
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