Emailing an unsigned counter-offer to a prospective homebuyer and responding to a text message about it with a “thumbs up” emoji are sufficient steps to create a contract of purchase and sale, but not enough to make that contract enforceable, the B.C. Supreme Court has ruled.
Justice Jan Brongers reached these conclusions in a decision issued Tuesday regarding the failed sale of a 115-year-old house on Cook Street in Saanich.
Daniel Bryan Ross, a Realtor and real estate developer, attempted to purchase the home from its owners, Kyle Joseph Garvey and Matthew Thomas Garvey, last September.
Brongers’ decision describes the home as a one-storey, two-bedroom residence that is “unoccupied and in poor condition.”
It sits on an 8,033-square-foot lot, and its assessed value for 2025 is $801,000, with all but $24,000 of that total attributed to land value, according to B.C. Assessment.
Contract negotiations
The Garvey brothers had listed the home for sale themselves, without hiring a Realtor. Their asking price was $759,000.
Ross made an offer of $750,000, according to the decision, which quotes from the email correspondence between prospective buyer and sellers.
“Unfortunately, we will not be accepting your offer for the property this evening,” wrote Kyle, as quoted in the decision.
“I encourage you to submit further offers in the future, should you still be interested.”
Ross responded “almost immediately,” according to the decision.
“I won’t be submitting further offers,” he wrote. “Typically if you saw things you wanted differently you would send me a counter offer. So may I ask what you would want changed?”
Ross and Kyle exchanged phone calls and text messages over the next few days, and Kyle eventually sent a counter-offer asking Ross for $769,000, plus a higher deposit and a lower buyer’s brokerage fee.
The counter-offer was not signed or initialled by either of the Garvey brothers.
Ross agreed to its terms and sent a version with his own signature and initials back to the Garveys, including with it a note explaining that the seller would “typically” have sent the counter-offer already signed.
“I understand you’re kinda learning as you go,” Ross wrote. “I’m providing this signed and accepted offer to you as per our email and text conversations stating that you were providing me with a ‘counter offer.’ I would ask you to please sign and initial everything as soon as possible.”
In addition to his email, Ross sent Kyle a text message saying he had accepted the counter-offer, to which Kyle responded with a “thumbs-up” emoji.
By text, the buyer again noted that the counter-offer should be signed as soon as possible, to which Kyle responded that he needed to talk to his brother and their lawyer before doing so.
“Man I wish you had a Realtor,” said Ross in response, as quoted in the court decision.
“When you send me a ‘counter-offer’ and I accept without changes, that is done. And the date of acceptance is today. There isn’t another round … At this point you’ve created a binding accepted offer with me that should have all signatures attached.”
Despite the buyer’s insistence, the Garveys never signed the counter-offer, ultimately taking the position that they were merely negotiating with Ross and had not agreed to sell the property to him.
Contract was validly formed
Ross sued the Garveys and placed a certificate of pending litigation on the property’s title.
He asked the court to find that the counter-offer he accepted constituted a valid and enforceable contract, which would allow him to follow through with his purchase of the home.
The Garveys took the position that there was no contract, and that Ross’ lawsuit should be dismissed.
Brongers broke the matter down into multiple legal questions to be answered. First, did the parties form a valid contract? Second, if they did, is that contract enforceable?
On the first question, the judge found the answer was yes, noting that there was “no suggestion” of any ambiguity about the essential terms of the counter-offer.
“A reasonable person in Mr. Ross’ position would consider the email sent from the owners’ gmail address on Sept. 24, 2024, at 4:10 p.m. (i.e., the counter-offer) as an offer capable of acceptance,” the decision reads.
“A reasonable person in the owners’ position would consider Mr. Ross’ reply email sent to the owners’ gmail address on Sept. 24, 2024, at 6:14 p.m. as an acceptance of the owners’ offer (i.e., the counter-offer).”
While the Garveys argued that the counter-offer was merely “discussion correspondence,” Brongers found this suggestion “wholly disingenuous.” The judge also rejected the Garveys’ arguments that Ross’ willingness to change the terms of the contract with further negotiation undermined his position that the contract existed.
The fact that the counter-offer was not signed did not invalidate the existence of a contract, Brongers ruled.
“I am of the view that the presence or absence of party signatures goes to the issue of contract enforceability,” the decision reads. “It is not strictly relevant to the question of contract formation, given that contracts may be made orally and by conduct, as well as in writing.”
Contract was unenforceable
The mere existence of a contract does not make that contract enforceable, according to Brongers’ decision, particularly when one party is resisting its enforcement.
B.C.’s Law and Equity Act states that contracts regarding land must be in writing and signed in order to be enforceable.
While Ross conceded that the Garveys did not “affix traditional signatures to” the counter-offer, he argued that the court should interpret the law broadly and conclude that the Garveys had, in fact, signed the document through the manner of their correspondence with him.
“Mr. Ross relies in particular on the fact that the counter-offer was sent to Mr. Ross by email from the owners’ gmail address, which Kyle represented to be the email account that the owners would use to deal with offers regarding the property,” the decision reads.
“Kyle also sent a thumbs up emoji in response to Mr. Ross’ text confirming that the counter-offer had been accepted. Mr. Ross argues that these facts support a finding that the owners’ conduct amounts to a signing of the contract.”
Brongers disagreed, noting that neither the email nor the text contained “a formal mark reflecting the identity of its author.”
“Sending an email is not the same as signing an email, any more than mailing or faxing a letter amounts to signing a letter,” the judge’s decision reads.
“Accepting that a contract can be ‘signed’ by simply sending a thumbs up emoji in a text disconnected from the contractual document itself is no different than accepting that a text containing just the word ‘yes’ constitutes a valid signature. To do so would require treating (the Law and Equity Act) as if the word “signed” does not appear at all in the legislation."
Accordingly, Brongers dismissed Ross’ lawsuit. The judge declined, however, to order the removal of the certificate of pending litigation from the Garveys’ property title, reasoning that the brothers had not shown that they would suffer a hardship or inconvenience if it remains in place while Ross considers whether to appeal the decision.
Correction
A previous version of this story used the wrong word in the final paragraph. The judge declined to remove the certificate of pending litigation, not pending legislation. The story has been corrected.
