NOTICE TO BUYER TO PERFORM (NBP)
- What is the purpose of the NBP form?
Answer:
The NBP is used by the seller (through the listing agent) to formally notify the buyer that they must complete a specific contractual obligation within 2 days (or another period stated) — or the seller may cancel the contract.
Example:
Buyer hasn’t delivered the earnest money deposit (EMD), removed contingencies, or signed disclosures.
Goal:
It’s a warning notice, not an automatic cancellation. It gives the buyer a final chance to comply before the seller exercises cancellation rights under the RPA (§14G).
- When can I issue an NBP?
Answer:
You can issue an NBP only after the buyer’s deadline to perform has already passed or is due immediately.
- Example: The RPA says buyer must deposit EMD within 3 business days.
→ On day 4, you can issue the NBP.
If you send it too early, it’s invalid.
- How much notice does the NBP give the buyer to act?
Answer:
By default, 2 days (calendar days) from delivery, unless you change it on the form.
- The seller can choose a longer or shorter period, but it must be reasonable.
- What kinds of things can we demand in an NBP?
Answer:
Anything the buyer is obligated to do under the RPA, such as:
- Deposit EMD into escrow
- Provide proof of funds or loan preapproval
- Remove contingencies (inspection, loan, appraisal, etc.)
- Sign required disclosures
- Execute escrow instructions or other paperwork
- Provide verification of down payment
You cannot use it to demand something that is not required in the contract.
- What happens if the buyer doesn’t comply after receiving an NBP?
Answer:
If the buyer does not perform within the notice period, the seller gains the contractual right to cancel the purchase agreement by serving a Notice of Cancellation (NC) form.
However, the seller must actively cancel — the contract does not automatically end.
- Can the seller issue multiple NBPs?
Answer:
Yes, but it’s usually better to issue one comprehensive NBP covering all missed actions.
If the buyer later misses a new obligation, you can send another NBP for that specific issue.
- What if the buyer performs after receiving the NBP but before cancellation?
Answer:
If the buyer cures (performs) before the seller sends a Notice of Cancellation, the contract continues in full force.
The NBP is meant to motivate compliance, not punish the buyer.
- Do we need to attach proof of delivery?
Answer:
Yes. Always document when and how the NBP was delivered — email, e-sign platform, or in-person.
Time of delivery starts the 2-day countdown.
- Can the listing agent send the NBP directly, or must the seller sign it?
Answer:
The seller must sign the NBP, but the listing agent can prepare and deliver it with the seller’s authorization.
Best practice: Have seller sign to show consent, then send to the buyer’s agent via email or DocuSign.
- Can an NBP be issued while contingencies are still active?
Answer:
Yes — if the buyer was supposed to remove a contingency by a certain date and hasn’t done so, the seller can issue the NBP to compel removal.
However, if contingencies haven’t yet expired, you cannot use an NBP to force early removal.
- What if escrow hasn’t been opened yet — can we still issue an NBP?
Answer:
Yes, as long as there’s a binding purchase contract and the buyer has missed a contractual duty (like opening escrow or depositing EMD).
You can send the NBP referencing the same property and agreement date.
- Does issuing an NBP automatically cancel the deal?
Answer:
No. It’s only a notice, not a cancellation.
If the buyer fails to act, the seller must then issue a Notice of Cancellation (NC) form to officially end the contract.
- What if the buyer refuses to acknowledge or respond to the NBP?
Answer:
The notice period still counts from the time of delivery, not acknowledgment.
If you can prove delivery, and the buyer fails to perform in 2 days, the seller can cancel.
- Can we deliver an NBP by email or DocuSign?
Answer:
Yes — if the parties agreed in writing to electronic delivery (which most CAR contracts allow under §28 of the RPA).
Keep delivery receipts or digital logs as proof.
- Should we send the NBP to escrow?
Answer:
Not required, but it’s a good practice to CC escrow so they’re aware of the status and deadlines.
It prevents escrow from assuming the transaction is still moving smoothly.
- What if the buyer’s agent argues that the seller can’t cancel?
Answer:
Remind them that the RPA grants the seller the right to cancel after the buyer fails to perform following written notice (RPA §14G).
As long as timelines and delivery are documented, the cancellation is enforceable.
- Can a buyer issue a similar notice to the seller?
Answer:
Yes — it’s the counterpart form called Notice to Seller to Perform (NSP).
Buyers use it when the seller fails to deliver disclosures, provide access, or complete agreed repairs.
- Does the broker need to approve the NBP before sending?
Answer:
Not legally, but yes, best practice.
Since NBPs can lead to cancellation or potential disputes, the broker should review it to confirm deadlines and contract sections are correct.
- What happens to the buyer’s EMD if the seller cancels after an NBP?
Answer:
That depends on whether the buyer was in default and how the contract was written (liquidated damages clause).
Escrow will typically hold the funds until both parties sign a Cancellation (CC) form or there’s a legal ruling.
- Can an NBP be rescinded?
Answer:
Yes, the seller can withdraw it or simply choose not to cancel after issuing it.
An NBP is a warning, not a binding commitment to cancel.
✅ Broker Summary:
- Purpose: Give buyer a last chance to comply.
- Timing: After deadline has passed.
- Effect: Buyer must perform in 2 days or risk cancellation.
- Documentation: Proof of delivery is key.
- Next step if no performance: Issue Notice of Cancellation (NC).
Disclaimer:
The questions and answers provided are for general guidance only and may not cover all details or apply to every situation. If anything is unclear or you need further clarification, please visit car.org for official resources and the most up-to-date information from the California Association of REALTORS®.