Deal Not Invalid Despite Missing Form

Read the full decision: Bastarache v. Edgerton, No. FBTCV146045796, 2015 Conn. Super. (Mar. 30, 2015).

A Connecticut trial court has determined that a purchase and sales agreement was valid, even though a dual agency consent form, which was required to be attached to the agreement pursuant to the agreement’s terms, was missing. 

In 2014, property owners (“Sellers”) entered into a purchase and sale agreement (“Agreement”) with prospective purchasers (“Buyers.”) Sellers and Buyers were each represented by different agents within the same brokerage.   Pursuant to the terms of the Agreement, an executed copy of a dual agency consent form was required to be attached to the Agreement. 

Two days after the Agreement was executed by Buyers and Sellers, the Sellers contacted the Buyers and notified them that they were repudiating the Agreement.  Buyers sued Sellers for specific performance of the Agreement, requesting that Sellers accept payment and convey the property to Buyers. 

In response, Sellers claimed that the Agreement was unenforceable and void as a matter of law, due to the fact that the dual agency form was not attached to the Agreement.  The court disagreed, holding that, under Connecticut contract law, the “essential elements” of a valid contract were all present in the Agreement, despite the missing form.  The substance of the Agreement was a real estate transaction, and the Agreement contained all elements necessary to carry out the transaction.  Furthermore, held the court, even if the consent form were to be considered an “essential element” of the Agreement, Connecticut law holds that “a court may…enforce an agreement if the [essential] missing terms can be ascertained, either from the express terms or by fair implication.”  In this case, because the Agreement named the brokerage and telephone number of the listing and cooperating agents as one and the same, the “missing element” of consent to dual agency could be reasonably inferred from the terms of the Agreement.     

Sellers also claimed that the Agreement should be deemed void as against public policy, as the dual consent form was required by Connecticut law. To this point, the court ruled that while Connecticut law indeed requires written disclosure of dual agency, it does not require the disclosure to be attached to the listing agreement.  Therefore, while a failure to disclose dual agency would be, in itself, against public policy, the Sellers did not make this allegation.  Simply failing to attach the form to the Agreement did not in itself indicate a failure to disclose the dual agency relationship.     

The court refused to invalidate the Agreement, and the case currently being litigated based on this ruling. 

Bastarache v. Edgerton, No. FBTCV146045796, 2015 Conn. Super. (Mar. 30, 2015).