Michael Conley, Jr. v. Mona Guerrero(076928)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

Michael Conley, Jr. v. Mona Guerrero (A-65-15) (076928)

Argued January 17, 2017 -- Decided April 3, 2017

Solomon, J., writing for a unanimous Court.

In this appeal, the Court determines whether the attorney-review provision of a standard form real estate
contract, which specifies that notice of disapproval must be transmitted to the real estate agent or broker by certified
mail, telegram, or personal service, must be strictly enforced.

On January 12, 2014, plaintiffs Michael Conley, Jr., and Katie M. Maurer (Buyers) signed a contract to
purchase a condominium from defendant Mona Guerrero (Seller). The real estate agent prepared, and the parties
used, a standard form real estate contract. Seller signed the contract on January 14, 2014, and the executed
agreement was delivered the next day. Both the offer and acceptance were transmitted via e-mail and/or fax.

The agreement included an attorney-review clause, mandated by the Court in New Jersey State Bar Ass’n
v. New Jersey Ass’n of Realtor Boards (Bar Ass’n), 93 N.J. 470, 476-77, modified, 94 N.J. 449 (1983), and N.J.A.C.
11:5-6.2(g)(2), which gave the parties’ respective attorneys three business days to review the contract before it
became legally binding. If Buyers’ or Seller’s attorney disapproved the contract, the clause required that he or she
notify the “REALTOR(S) and the other party . . . within the three-day period.” Any notice of disapproval was
required to be sent to the “REALTOR(S) by certified mail, by telegram, or by delivering it personally.”

A bidding war began on the same day that the attorney-review period commenced, and Seller accepted a
higher bid from defendants Michele Tanzi and Brian Kraminitz.

One day before the attorney-review period expired, Seller’s attorney e-mailed and faxed a letter to Buyers’
attorney disapproving the contract. After the deadline passed, Buyers’ attorney e-mailed a letter to the agent, and
faxed Seller’s attorney a copy, stating that “the 3 days within which an attorney may terminate this contract ha[ve]
expired. The contract is now in full force and effect.”

Buyers then filed a breach-of-contract complaint in the Superior Court, Law Division, demanding specific
performance and requesting a temporary restraining order to enjoin the sale of the condominium to anyone other
than Buyers. Buyers claimed that because the three-day period within which notification must have been
communicated had passed, and neither Buyers, their attorney, nor their agent received proper notification of
disapproval, “the contract became effective.”

The trial court denied the application for a temporary restraining order, and both parties filed cross motions
for summary judgment. The court granted defendants’ motion and dismissed the complaint. Buyers appealed, and
the Appellate Division affirmed the trial court’s decision. 443 N.J. Super. 62 (App. Div. 2015). The panel found
that the agreement detailed the method of delivering a notice of disapproval to the real estate agent only; any form of
actual notice to Buyers was sufficient; and Buyers’ right to notice of disapproval was satisfied here. Id. at 68-69.

The Court granted Buyers’ petition for certification. 244 N.J. 526 (2016).

HELD: In this case, because Buyers received actual notice of disapproval within the three-day attorney-review period
by a method of communication commonly used in the industry, the notice of disapproval was valid. The Court also
exercises its constitutional authority over the practice of law and finds that an attorney’s notice of disapproval of a real
estate contract may be transmitted by fax, e-mail, personal delivery, or overnight mail with proof of delivery. Notice by
overnight mail will be effective upon mailing. The attorney-review period within which this notice must be sent
remains three business days.

1
1. In 1982, the NJSBA filed a suit against REALTORS seeking a ruling that licensed real estate brokers or
salespersons engage in the unauthorized practice of law when they prepare contracts for the sale or lease of property.
The Court reviewed the final consent judgment upon joint application of the parties under its constitutional powers
governing the practice of law. Bar Ass’n, supra, 93 N.J. at 472. The Court approved the final consent judgment,
with modifications, and specifically noted that it may modify the agreement in the future. Id. at 474. (pp. 10-13)

2. In 1987, the Real Estate Commission added Section (g) to N.J.A.C. 11:5-6.2, requiring “licensees” in the State,
including real estate agents and brokers, to comply with the terms mandated in Bar Ass’n, supra, 93 N.J. at 475-81.
Section 6.2(g) requires every contract for the sale of certain real estate, including the property at issue here, to
contain the following language within its attorney-review clause: “The attorney must send the notice of disapproval
to the Broker(s) by certified mail, by telegram, or by delivering it personally.” (pp. 13-14)

3. The Court has not decided whether an attorney’s disapproval letter must follow the precise notification
procedures detailed in the attorney-review clause. In Kutzin v. Pirnie, 124 N.J. 500, 508 (1991), the Court
commented in dicta on the failure of both parties to comply with the method-of-delivery provision. Gaglia v.
Kirchner, 317 N.J. Super. 292, 298 (App. Div.), certif. denied, 160 N.J. 91 (1999), left open the question central to
this appeal: whether an individual can rely on the other party’s failure to abide by the method-of-notice provision to
enforce the contract. (pp. 15-17)

4. The Bar Ass’n Court was concerned first and foremost with protecting consumers’ rights. The Court did not
draft the language of the settlement. Rather, the parties chose the three methods of communication to notify the
broker of dissatisfaction with the contract. Bar Ass’n, supra, 93 N.J. at 476, 480. The Bar Ass’n Court
contemplated that a court would have the flexibility to grant relief without strictly adhering to the settlement
agreement’s terms because the Court explicitly granted courts the power to address, “in the most appropriate manner
under the given circumstances,” “questions of the interpretation, application, and general adherence to or
enforcement of the settlement . . . that may arise and affect the public interest.” Id. at 474. (pp. 18-19)

5. In cases following Bar Ass’n, the Appellate Division has honored effectuating the purpose of the attorney-review
clause. In Peterson v. Estate of Pursell, 339 N.J. Super. 268, 273-75 (App. Div. 2001), the Appellate Division found
the attorney-review clause to require that the three-day review period begin on the date the signed contract is
delivered to a party, not its agents. The panel found this rule supported the purpose of the attorney-review clause—
to protect the parties’ interests from the real estate broker. In Levison v. Weintraub, 215 N.J. Super. 273, 274-75,
277 (App. Div.), certif. denied, 107 N.J. 650 (1987), the panel stated that when “attorney disapproval is registered
within three days there can be no contract, regardless of prior approvals,” finding that this holding supported the
attorney-review clause’s purpose. And in Romano v. Chapman, 358 N.J. Super. 48, 52 (App. Div.), certif. denied,
176 N.J. 431 (2003), the panel based its decision on the need to effectuate the broad purpose of the attorney-review
clause and not on a strict interpretation of its language. (pp. 19-22)

6. As the appellate panel observed, strict enforcement of the notification provision here would result in the
forfeiture of Seller’s right to review the contract with counsel and disapprove it within the attorney-review period.
Holding that the notice here—which was actually and indisputably received by Buyers within the three-day window
—was deficient because of the manner in which it was transmitted would elevate form over the protective purpose
for which the attorney-review provision was adopted. The Court declines to reach such a result. (pp. 22-23)

7. The Court reserved its right to modify the settlement reached in Bar Ass’n and does so: notice of disapproval of
a real estate contract may be transmitted by fax, e-mail, personal delivery, or overnight mail with proof of delivery.
Notice by overnight mail will be effective upon mailing. The attorney-review period within which this notice must
be sent remains three business days. The Court commends this matter to the Real Estate Commission for
consideration of amendments to N.J.A.C. 11:5-6.2(g) consistent with the Court’s holding. The Court recognizes that
it may need to modify the attorney-review clause again in the future. (pp. 23-25)

The judgment of the Appellate Division is AFFIRMED as modified, and the matter is referred to the Civil
Practice Committee.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion.

2
 SUPREME COURT OF NEW JERSEY
A-65 September Term 2015
076928

MICHAEL CONLEY, JR. and KATIE
M. MAURER,

Plaintiffs-Appellants,

v.

MONA GUERRERO, BRIAN
KRAMINITZ, and MICHELE TANZI,

Defendants-Respondents.

Argued January 17, 2017 – Decided April 3, 2017

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 443 N.J. Super. 62 (App. Div.
2015).

William J. Kearns argued the cause for
appellants (Kearns & Duffy, attorneys).

Martin Liberman argued the cause for
respondent Mona Guerrero.

Robert J. Machi argued the cause for
respondents Brian Kraminitz and Michele
Tanzi (Morgan Melhuish Abrutyn, attorneys;
Mr. Machi and Joshua A. Heines, on the
brief).

Barry S. Goodman argued the cause for amicus
curiae New Jersey Realtors® (Greenbaum,
Rowe, Smith & Davis, attorneys; Mr. Goodman
and Steven B. Gladis, on the brief).

F. Bradford Batcha argued the cause for
amicus curiae New Jersey State Bar
Association (Thomas H. Prol, President,
attorney; Mr. Prol, of counsel; Mr. Batcha,
Stuart J. Lieberman, Michael G. Sinkevich,
Jr., and Heather G. Suarez, on the brief).

1
 JUSTICE SOLOMON delivered the opinion of the Court.

In 1983, this Court affirmed a final consent judgment for a

settlement agreement between the New Jersey State Bar

Association and the New Jersey Association of Realtor Boards.

New Jersey State Bar Ass’n v. New Jersey Ass’n of Realtor Boards

(Bar Ass’n), 93 N.J. 470, 476-77, modified, 94 N.J. 449 (1983).

The terms of the settlement provide that real estate brokers and

salespersons may prepare contracts to sell or lease real

property, so long as a standard form is used that includes a

three-day period for attorney review. If, during this review

period, an attorney disapproves the contract, he or she must

notify the other party and the other party’s real estate agent

or broker. If no notice of disapproval is sent within the three

days, however, the contract becomes enforceable. The standard

attorney-review provision specifies that notice of disapproval

must be transmitted to the real estate agent or broker by

certified mail, telegram, or personal service.

Plaintiffs Michael Conley, Jr., and Katie M. Maurer

(Buyers) made an offer to purchase a condominium from defendant

Mona Guerrero (Seller), and, a few days later, Seller signed and

executed the contract. Before the three-day attorney-review

period expired, Seller’s attorney sent Buyers’ attorney and

their realtor notice of disapproval by e-mail and fax, rather

2
than by the methods approved under our 1983 holding and

prescribed in the parties’ contract -- certified mail, telegram,

or personal service. Buyers sued for specific performance,

claiming the contract was enforceable because Seller’s

notification of disapproval was sent improperly.

We are called upon to determine whether the attorney-review

provision of a standard form real estate contract must be

strictly enforced, thereby nullifying Seller’s notice of

disapproval and requiring enforcement of the real estate

contract. We conclude that, because Buyers received actual

notice of disapproval within the three-day attorney-review

period by a method of communication commonly used in the

industry, the notice of disapproval was valid. We also exercise

our constitutional authority over the practice of law and find

that an attorney’s notice of disapproval of a real estate

contract may be transmitted by fax, e-mail, personal delivery,

or overnight mail with proof of delivery. Notice by overnight

mail will be effective upon mailing. The attorney-review period

within which this notice must be sent remains three business

days.

I.

The pertinent undisputed facts of record are as follows.

On January 12, 2014, Buyers signed a contract to purchase a

condominium from Seller. Weichert Realtors was the Listing and

3
Selling Broker on this transaction, and a real estate agent from

Weichert acted as a dual agent for the parties. The agent

prepared, and the parties used, a standard form real estate

contract. Seller signed the contract on January 14, 2014, and

the executed agreement was delivered the next day. Both the

offer and acceptance were transmitted via e-mail and/or fax.

The agreement included an attorney-review clause, mandated

by this Court in Bar Ass’n and N.J.A.C. 11:5-6.2(g)(2), which

gave the parties’ respective attorneys three business days to

review the contract before it became legally binding. If

Buyers’ or Seller’s attorney disapproved the contract, the

clause required that he or she notify the “REALTOR(S) and the

other party . . . within the three-day period.”1 Any notice of

disapproval was required to be sent to the “REALTOR(S) by

certified mail, by telegram, or by delivering it personally.”

A bidding war began on the same day that the attorney-

review period commenced, and Buyers were informed that higher

1 In a subsequent modification to New Jersey State Bar Ass’n v.
New Jersey Ass’n of Realtor Boards (Bar Ass’n), 93 N.J. 470
(1983), we held “that the term ‘Realtor’ may be used in the
ATTORNEY REVIEW clause instead of ‘Broker’ by any person who is
duly authorized by the National Association of Realtors to use
that term.” N.J. State Bar Ass’n v. N.J. Ass’n of Realtor Bds.,
94 N.J. 449, 449 (1983). As such, while Bar Ass’n, supra, 93
N.J. at 476-77, and N.J.A.C. 11:5-6.2(g)(2)(3) use only the term
“Broker(s),” the contract at issue here used appropriate
language to apply the method-of-notification provision to the
dual real estate agent.
4
offers were submitted for the property. In response, Buyers

increased their offer amount and implored Seller to agree to the

sale. The next day, however, Seller accepted a higher bid from

defendants Michele Tanzi and Brian Kraminitz (Tanzi).

One day before the attorney-review period expired, Seller’s

attorney e-mailed and faxed a letter to Buyers’ attorney

disapproving the contract. The dual real estate agent was

copied on the e-mail. Nevertheless, after the deadline passed,

Buyers’ attorney e-mailed a letter to the agent, and faxed

Seller’s attorney a copy, stating that “the 3 days within which

an attorney may terminate this contract ha[ve] expired. The

contract is now in full force and effect.”

Buyers then filed a breach-of-contract complaint in the

Superior Court, Law Division, against Seller and Tanzi

(collectively, defendants), demanding specific performance and

requesting a temporary restraining order to enjoin the sale of

the condominium to anyone other than Buyers. Buyers argued that

“no attorney notified any realtor involved in the transaction by

certified mail, by telegram or by personal delivery as is

required if the contract was disapproved.” Consequently, Buyers

claimed that because the three-day period within which

notification must have been communicated had passed, and neither

Buyers, their attorney, nor their agent received proper

notification of disapproval, “the contract became effective.”

5
 The trial court denied the application for a temporary

restraining order, finding that Buyers failed to establish a

reasonable probability of success on the merits and that the

equities favored Tanzi as an “innocent buyer[] . . . that

entered into a contract to purchase the property, and now ha[s]

been forced to enter into litigation.”

Both parties filed cross motions for summary judgment

because the facts were “largely uncontroverted.” The court

granted defendants’ motion for summary judgment and dismissed

Buyers’ complaint. Buyers appealed, and the Appellate Division

affirmed the trial court’s decision. Conley v. Guerrero, 443

N.J. Super. 62, 68 (App. Div. 2015). The panel found that the

agreement detailed the method of delivering a notice of

disapproval to the real estate agent only; any form of actual

notice to Buyers was sufficient; and Buyers’ right to notice of

disapproval was satisfied here. Id. at 68-69.

The panel questioned whether Buyers could be able to

enforce their agent’s right to notice by the prescribed methods.

Id. at 69. Assuming Buyers’ ability to do so, the appellate

panel found that the specific methods of delivering notification

delineated in the contract were not material, and to force

Seller to forfeit her right to disapprove the contract would be

inappropriate. Id. at 69-70. The Appellate Division reasoned

that the notice requirements were imposed on the parties by the

6
courts, not through the bargaining process, and therefore, could

be relaxed in the interests of justice. Id. at 70. The panel

also found that Seller’s attorney “substantially compl[ied] with

the notice requirement” because the “undisputed notice to the

buyers and their real estate agent . . . achieve[d] the goal of

the provision: to accomplish actual notice.” Id. at 70-71.

We granted Buyers’ petition for certification. 244 N.J.

526 (2016). We also granted amicus curiae status to the New

Jersey State Bar Association (NJSBA) and New Jersey REALTORS2

(REALTORS).

II.

Buyers argue that the trial court and appellate panel

modified the Court’s decision in Bar Ass’n when they ruled that

Seller’s attorney could disapprove the contract by fax and e-

mail, rather than the three methods specified in Bar Ass’n:

telegram, certified mail, and in-person delivery. By allowing

alternative methods, Buyers assert that the lower courts usurped

this Court’s exclusive authority to regulate the rules governing

the practice of law. In addition, Buyers contend that the

contract should be strictly enforced because it is unfair for

2 New Jersey REALTORS was formerly known as the New Jersey
Association of REALTOR Boards. This organization represented
real estate professionals in Bar Ass’n, which created the
attorney-review requirement at issue in this case.
7
the courts to hold realtors -- but not attorneys -- to the

letter of Bar Ass’n.

Defendants ask this Court to affirm the decision of the

Appellate Division. They argue that the Court should find

substantial compliance with the notice provision because the e-

mail and fax sent by Seller’s attorney provided actual notice to

Buyers and the agent. Defendants assert that if the Court were

to insist on strict enforcement of the notice provision, it

would result in a “disproportionate forfeiture” for Tanzi, who

bought the house in good faith and has been living there for

approximately two years. In addition, according to defendants,

strict enforcement would “result in a forfeiture of [Seller’s]

right to disapprove the contract.”

According to defendants, common practice in real estate law

has changed dramatically since the Court’s decision in Bar Ass’n

thirty-three years ago. As such, defendants argue that this

Court should not adopt a formalistic rule that ignores the

reality of real estate transactions, in which e-mail and fax are

routinely used to communicate and exchange contracts. To

support this point, Seller submits that it defies logic to allow

the signed contract to be delivered by e-mail and fax -- which

happened here -- yet not allow disapproval of the same contract

in the same manner.

8
 Amicus NJSBA supports defendants’ contentions. It asks the

Court to affirm the Appellate Division and to “take steps to

reassess the transmission requirements established in the [Bar

Ass’n] case over 30 years ago.”

Amicus REALTORS also argues in support of defendants. It

asserts that the contract language from Bar Ass’n is

anachronistic and that future contracts should allow

communication “by fax, by email, or by a reputable overnight

courier.” REALTORS argues that “the decision below was correct

as a matter of logic,” but concedes that relying on the

substantial compliance doctrine could endanger the Bar Ass’n

settlement. Instead, REALTORS urges that the Court modify the

allowable method of delivery for notices of disapproval in real

estate contracts and apply it retroactively to this case.

III.

Our review of a summary judgment ruling is de novo. Templo

Fuente De Vida Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh,

224 N.J. 189, 199 (2016). We apply the same standard as the

trial court. Ibid. That is, summary judgment will be granted

if there is no genuine issue of material fact and “the moving

party is entitled to a judgment or order as a matter of law.”

Ibid. (quoting R. 4:46-2(c)).

A.

9
 Our decision as to whether defendants are entitled to

judgment as a matter of law is guided by Bar Ass’n. That case

was precipitated by State v. Bander, 56 N.J. 196 (1970), which

was decided more than ten years earlier. In Bander, the

defendant was a licensed real estate broker who used a blank

legal form as his skeleton for a contract to sell a certain

property. Id. at 198. The defendant added provisions he

created himself and, eventually, the document was signed by both

the sellers and purchasers. Id. at 198-99. The defendant was

then charged with the unauthorized practice of law, under the

now repealed N.J.S.A. 2A:170-78(a). Id. at 199 (“Any person not

licensed as an attorney or counselor at law . . . [who]

[e]ngages in this state in the practice of law . . . [i]s a

disorderly person.” (quoting N.J.S.A. 2A:170-78(a) (repealed))).

N.J.S.A. 2A:170-81(d), however, exempted licensed real

estate brokers who drafted real estate contracts from criminal

liability under N.J.S.A. 2A:170-78. Ibid. The municipal and

superior court determined that this exemption was

unconstitutional and, thus, found the defendant guilty. Ibid.

According to those tribunals, the N.J.S.A. 2A:170-81(d)

exemption was a legislative attempt to authorize certain

practices of law -- conduct which goes directly against this

Court’s “exclusive jurisdiction over admission of the practice

of law and discipline of those admitted,” pursuant to Article

10
IV, Section 2, Paragraph 3 of the New Jersey Constitution. Id.

at 200.

This Court reversed the defendant’s conviction, finding

that the Legislature enacted N.J.S.A. 2A:170-78 “to aid the

judiciary in its regulation of the practice of law by providing

a mode of punishment for those found to have engaged in some

unlawful practice.” Id. at 201. The Court concluded that the

exemption provision was not an attempt by the Legislature to

permit real estate brokers to practice law, but rather to shield

their practices from criminality under N.J.S.A. 2A:170-78.

Ibid. The Court declined to decide whether the defendant’s

conduct actually constituted the unauthorized practice of law

because such a determination was not needed under its holding

and because the record was insufficiently developed to make that

assessment. Id. at 202. The Court suggested, however, that “an

answer might be obtained in a separate suit for an injunction”

against this type of act “or for a declaratory judgment,” in

which a fully developed record would allow “a valued and

intelligent reply to such an inquiry.” Id. at 202-03.

About a decade later, in New Jersey State Bar Ass’n v. New

Jersey Ass’n of Realtor Boards, 186 N.J. Super. 391, 393 (Ch.

Div. 1982), the NJSBA acted on the Bander Court’s suggestion and

filed a suit against REALTORS seeking a declaratory judgment and

injunctive relief. NJSBA sought a ruling that licensed real

11
estate brokers or salespersons engage in the unauthorized

practice of law when they prepare contracts for the sale or

lease of property. Ibid.

After several settlement attempts and two public hearings,

the parties reached a final agreement. Id. at 393-96. Under

the proposed final settlement, real estate brokers were allowed

to prepare real estate contracts, provided they include an

attorney-review clause that (1) gives the parties’ respective

attorneys three days to review the contract and (2) requires an

attorney to notify the broker of disapproval within the three-

day review period. Id. at 395.

The trial court found that

[t]he proposed settlement [accommodates] the
interests of realtors and attorneys by
allowing the realtor to consummate the
contract phase of the transaction, with
attorneys handling the actual transfer of
title. Most importantly, however, it serves
to protect the public interest by making the
contract subject to prompt attorney review if
either buyer or seller so desires.

[Id. at 396.]

The court entered a final consent judgment that incorporated the

proposed terms with minor modifications, including the

requirement that a disapproving attorney must notify the other

party, in addition to the broker. Id. at 397-98.

This Court reviewed the final consent judgment upon joint

application of the parties, NJSBA and REALTORS, “under our

12
constitutional powers governing the practice of law.” Bar

Ass’n, supra, 93 N.J. at 472 (citing N.J. Const. of 1947 art.

VI, § II, ¶ 3; R. 1:21 (regulation of practice of law)). The

Court found that “[t]o the extent that there is an inevitable or

unavoidable overlap between the realty and legal professions,

the public’s interest is safeguarded through the settlement’s

attorney[-]review provisions and the Court’s continuing

supervisory control.” Id. at 474. Importantly, we approved the

final consent judgment, with modifications, and specifically

noted that we may modify the agreement in the future. Ibid.

In 1987, the Real Estate Commission added Section (g) to

N.J.A.C. 11:5-6.2, requiring “licensees” in the State, including

real estate agents and brokers, to comply with the terms

mandated in Bar Ass’n, supra, 93 N.J. at 475-81. N.J.A.C. 11:5-

6.2(g) has not been amended since.

B.

Section 6.2(g) requires every contract for the sale of

certain real estate, including the property at issue here, to

contain the following language within its attorney-review

clause:

3. Notice of Disapproval

If an attorney for the Buyer or the Seller
reviews and disapproves of this contract, the
attorney must notify the Broker(s) and the
other party named in this contract within the
three-day period. Otherwise this contract

13
 will be legally binding as written. The
attorney must send the notice of disapproval
to the Broker(s) by certified mail, by
telegram, or by delivering it personally. The
telegram or certified letter will be effective
upon sending. The personal delivery will be
effective upon delivery to the Broker's
office. The attorney may but need not also
inform the Broker(s) of any suggested
revisions in the contract that would make it
satisfactory.

[N.J.A.C. 11:5-6.2(g)(2) (emphasis added).]

The regulation also requires that the contract include “the

names and full addresses of all persons to whom a Notice of

Disapproval must be sent in order to be effective.” N.J.A.C.

11:5-6.2(g)(3).

Our courts have been called on several times to interpret

the attorney-review provisions in real estate contracts. See,

e.g., Romano v. Chapman, 358 N.J. Super. 48, 56-57 (App. Div.)

(holding that once attorney approves contract, contract is

binding, even if attorney attempts to disapprove it before

review deadline), certif. denied, 176 N.J. 431 (2003); Peterson

v. Estate of Pursell, 339 N.J. Super. 268, 273-74 (App. Div.

2001) (holding that attorney-review period begins to run “when a

conforming contract is delivered to a party”); Levison v.

Weintraub, 215 N.J. Super. 273, 274-75, 278 (App. Div.) (holding

that when one attorney, acting as attorney-in-fact, signs

contract on party’s behalf, second attorney for that party may

still disapprove contract), certif. denied, 107 N.J. 650 (1987).

14
However, this Court has not been called on to decide whether an

attorney’s disapproval letter must follow the precise

notification procedures detailed in the attorney-review clause.

This Court did evoke the prescribed means of notification

in Kutzin v. Pirnie, in which we held that the contract was

enforceable because it was not explicitly disapproved within the

three-day attorney-review period. 124 N.J. 500, 507 (1991). In

that case, during the attorney-review period, the sellers’

attorney sent a letter to the buyers’ attorney, asking that the

deposit be transferred to an escrow account pending closing.

Id. at 503-04. The buyers responded to the sellers’ attorney by

letter, also within the three-day period, agreeing to transfer

the funds and attaching a rider with proposed amendments to the

contract. Id. at 504. Several weeks later, however, the buyers

backed out of the deal. Id. at 505. Although we found

dispositive the fact that the contract was not clearly

disapproved within the three-day attorney-review period, in

dicta we commented on the failure of both parties to comply with

the method-of-delivery provision. Id. at 508. We noted that

the sellers’ attorney failed to send the letter directly to the

buyers also and that the buyers’ attorney failed to send the

letter by certified mail. Ibid.

Later, the Appellate Division decided Gaglia v. Kirchner,

which is more germane to the issue now before us. 317 N.J.

15
Super. 292 (App. Div.), certif. denied, 160 N.J. 91 (1999). In

Gaglia, supra, the buyer’s attorney sent a letter -- only to the

sellers’ attorney -- by fax and ordinary mail, and not

personally or by telegram or certified mail. Id. at 296. The

letter -- sent within the three-day attorney-review period --

explicitly disapproved the contract in its current condition and

requested certain modifications that would render the contract

acceptable. Id. at 296-97. Several business days later, the

sellers’ attorney faxed a letter to the buyer’s attorney,

stating, “I have received your disapproval of the contract . . .

. My clients do not wish to pursue this matter any more with

your clients. The contract shall be considered void.” Id. at

298. The buyer then brought an action to enforce the contract,

arguing that his attorney’s disapproval letter did not terminate

the contract because it failed to abide by the requisite

notification procedures. Ibid. The trial court and Appellate

Division agreed that “the party who invoked the attorney[-

]review provision to annul the contract could not avoid the

consequences of his doing so by relying on his own deviations

from the procedure prescribed by N.J.A.C. 11:5-6.2.” Ibid.

Although it limited a party’s ability to benefit from his

or her own mistakes, Gaglia left open the question central to

this appeal: whether an individual can rely on the other

16
party’s failure to abide by the method-of-notice provision to

enforce the contract.

Indeed, even though the cases cited above are instructive,

none dictate the outcome in this case. Buyers rely on Peterson,

supra, to support their argument that courts must strictly

enforce the precise terms of the attorney-review clause. 339

N.J. Super. at 276 (“We thus insist on strict adherence to the

contractual and regulatory language.”). Peterson is

distinguishable, however, because, while the contract language

was “crystal clear,” id. at 275, it dealt with a different

mandate -- the point at which the attorney-review period begins,

id. at 271. The panel found no good reason to deviate from the

contract’s language. Id. at 275.

In Kutzin, supra, we suggested that failure to abide by the

method-of-delivery provision would render a disapproval

ineffective, but those statements were dicta. 124 N.J. at 508.

Likewise, the Appellate Division’s holding in Gaglia, supra,

does not control here. There, the panel upheld the buyer’s

disapproval notice even though he did not abide by the

contractually specified methods of delivery. 317 N.J. Super. at

298-99. However, the disapproval notice was upheld because the

buyer later sought to enforce that very contract, arguing that

it was still valid because his own disapproval letter deviated

from the requirements of N.J.A.C. 11:5-6.2. Id. at 298. Here,

17
by contrast, Buyers rely on Seller’s noncompliance with contract

terms.

IV.

There is no directly controlling precedent before us. We

are influenced, however, by our decision in Bar Ass’n and

subsequent Appellate Division cases that have placed great

weight on the underlying purpose when interpreting and enforcing

the attorney-review provision.

A.

To begin with, the Bar Ass’n Court was concerned first and

foremost with protecting consumers’ rights. The Court approved

of the settlement agreement because it resolved the question of

brokers’ unauthorized practice of law, and, “[m]ost importantly,

. . . it serve[d] to protect the public interest by making the

contract subject to prompt attorney review if either buyer or

seller so desires.” Bar Ass’n, supra, 93 N.J. at 474 (quoting

trial court opinion); see also Calvert v. K. Hovnanian at

Galloway, VI, Inc., 128 N.J. 37, 45 (1992) (holding that,

“[m]ost importantly, what [Bar Ass’n] sought to protect was not

the private interest of lawyers but rather the public’s right to

be protected from inadequate information” by allowing parties to

real estate transactions opportunity to consult with counsel);

Sears Mortgage Corp. v. Rose, 134 N.J. 326, 356 (1993)

18
(explaining that Bar Ass’n settlement aimed to “protect the

interests of buyers and sellers”).

Notably, the Court did not draft the language of the

settlement. Rather, the parties chose the three methods of

communication to notify the broker of dissatisfaction with the

contract. Bar Ass’n, supra, 93 N.J. at 476, 480. In accepting

these methods, we do not perceive an intent on this Court’s part

to convert them into the focus of the Bar Ass’n opinion itself.

Similarly, we do not glean from the Bar Ass’n opinion an intent

that strict adherence is necessary, so long as the interests of

the consumer are protected. In fact, we believe that the Bar

Ass’n Court contemplated that a court would have the flexibility

to grant relief to the parties before it without strictly

adhering to the settlement agreement’s terms because the Court

explicitly granted courts the power to address, “in the most

appropriate manner under the given circumstances,” “questions of

the interpretation, application, and general adherence to or

enforcement of the settlement . . . that may arise and affect

the public interest.” Id. at 474.

B.

Turning to cases following Bar Ass’n, it appears that the

Appellate Division has honored effectuating the purpose of the

attorney-review clause above all else.

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 For example, in Peterson, supra, the buyer delivered the

executed agreement to the real estate broker, who then faxed the

contract to the seller’s attorney the next day. 339 N.J. Super.

at 272. The issue before the panel was when the three-day

attorney-review period began, given that the parties involved

received the contract on different days. Id. at 271. The

Appellate Division found the attorney-review clause to be

“crystal clear” and to require that the three-day review period

begin on the date the signed contract is delivered to a party,

not its agents. Id. at 275. The Peterson panel found this rule

supported the purpose of the attorney-review clause -- to

protect the parties’ interests from the real estate broker,

whose interests may be more focused on quickly closing a deal.

Id. at 276.

In Levison, supra, the sellers’ attorney signed a real

estate contract on the sellers’ behalf, acting under a power of

attorney, arguably evidencing approval of the contract. 215

N.J. Super. at 274. The sellers then forwarded the contract to

a second attorney for review, who disapproved the contract

within the three-day period. Id. at 274-75. The panel found

the contract to be void, stating that when “attorney disapproval

is registered within three days there can be no contract,

regardless of prior approvals.” Id. at 277. The Appellate

Division found that this holding supported the attorney-review

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clause’s purpose, which “is to protect parties against being

bound by broker-prepared contracts without the opportunity to

obtain adequate protection of their separate interests.” Ibid.

Levison was clarified by Romano, supra, where, on the

second day of the review period, each party’s attorney wrote to

her counterpart approving the contract and stating that the

attorney review was complete. 358 N.J. Super. at 50-51. On the

third day, however, the sellers accepted a higher offer, and a

disapproval letter was hand-delivered to the buyers’ counsel.

Id. at 51. The buyers sued, arguing that the attorney-review

clause was not meant “to prevent the creation of a binding

contract” before the three-day review period expired, “so long

as the parties’ attorneys have approved its contents.” Ibid.

In addition, the buyers argued that Levison was distinguishable

because the first attorney in that case was an agent acting as a

seller and not as legal counsel approving the contract terms.

Id. at 51-52.

The Appellate Division agreed with that distinction and

found that, although an attorney executed the agreement for the

sellers in Levison, the sellers in that situation were still

entitled to full attorney review as provided for in the

contract’s provisions. Id. at 56. The appellate panel

reiterated that the purpose of the attorney-review provision is

to “give the parties an opportunity for attorney review and

21
consultation” before a real estate contract becomes enforceable.

Id. at 54. With that purpose in mind, the panel found that

“once the attorney has the opportunity to review the agreement

and consult with the client, and the agreement is approved, with

or without changes, the client cannot back out of the agreement,

even within the three-day period.” Id. at 57. The panel based

its decision on the need to effectuate the broad purpose of the

attorney-review clause, “to give the parties an opportunity for

their respective attorneys to review the form agreement,” and

not on a strict interpretation of its language. Id. at 52.

Furthermore, we find the purpose-focused reasoning applied

in these decisions to comport with well-settled principles of

contract law. This Court will generally not rewrite a valid

contract to replace it with a better one, Quinn v. Quinn, 225

N.J. 34, 45 (2016), but, when strict enforcement of a contract

provision would frustrate the contract’s overarching purpose,

the courts will intervene, Cooper v. Government Employees

Insurance Co., 51 N.J. 86, 93-94 (1968).

As the appellate panel observed, strict enforcement of the

notification provision here would result in the significant

forfeiture of Seller’s right to review the contract with counsel

and disapprove it within the attorney-review period. Conley,

supra, 443 N.J. Super. at 69-70. Such a consequence would

undermine the purpose of the attorney-review clause. Thus, this

22
case presents precisely the type of circumstance where strict

enforcement is not called for in order to fulfill the consumer-

oriented purpose of the notice-of-disapproval obligation. In

addition, actual notice of disapproval of the contract was

conveyed to the attorney for the client. That is not disputed.

Moreover, because the broker was operating in a dual capacity

for Buyers and Seller in the original transaction, there can be

no practical argument that the broker did not know of the

disapproval. In any event, the broker here is not the

complaining party.

In short, holding that the notice here -- which was

actually and indisputably received by Buyers within the three-

day window -- was deficient because of the manner in which it

was transmitted would elevate form over the protective purpose

for which the attorney-review provision was adopted in Bar Ass’n

and included in Section 11:5-6.2(g) of the New Jersey

Administrative Code. We decline to reach such a result.

V.

Finally, we specifically reserved our right to modify the

settlement agreement reached in Bar Ass’n, supra, 93 N.J. at

474, and we do so today. Currently, the regulation provides

that real estate agents and brokers must receive notice by

certified mail, telegram, or personal delivery. N.J.A.C. 11:5-

6.2(g)(2)(3); Bar Ass’n, supra, 93 N.J. at 476-77; see N.J.

23
State Bar Ass’n v. N.J. Ass’n of Realtor Bds., 94 N.J. 449, 449

(1983) (allowing term “realtor” to replace “broker” in attorney-

review provision when warranted).

However, notice by telegram is obsolete. As amici point

out, fax and e-mail are “faster and more reliable” than

telegrams were. Shelly Freierman, Telegram Falls Silent Stop

Era Ends Stop, N.Y. Times (Feb. 6, 2006),

http://www.nytimes.com/2006/02/06/technology/telegram-falls-

silent-stop-era-ends-stop.html. In fact, it appears that fax

and e-mail have become the predominant, customary methods by

which professionals in the industry communicate. Thus, amending

the Bar Ass’n settlement is necessary to acknowledge customary

procedure in the profession and to recognize advances in

technology.

Therefore, notice of disapproval of a real estate contract

may be transmitted by fax, e-mail, personal delivery, or

overnight mail with proof of delivery. Notice by overnight mail

will be effective upon mailing. The attorney-review period

within which this notice must be sent remains three business

days. We also commend this matter to the Real Estate Commission

for consideration of amendments to N.J.A.C. 11:5-6.2(g)

consistent with our holding. Finally, we recognize that the

Court may need to modify the attorney-review clause again in the

future. Bar Ass’n, supra, 93 N.J. at 474.

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 VI.

For the reasons set forth above, the judgment of the

Appellate Division is affirmed as modified, and we hereby refer

this matter to the Civil Practice Committee.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s
opinion.

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