Don’t Interfere with Exclusive Buyer Agreements

ORLANDO, Fla. – Now that all Realtors® and MLS participants working with a buyer must have some type of written agreement prior to touring a home with a buyer they are working with, it’s important to know what they can and can’t do when a buyer asks about future representation. Of course, if the buyer hasn’t signed anything with another brokerage firm (or agreed to some form of oral agreement that could create obligations), then they’re fair game. But if they have signed an exclusive buyer agreement, showing agreement or property pre-touring agreement, there can be restrictions and limitations.

Exclusive Buyer Agreement

If the buyer has signed an exclusive agreement, such as the Florida Realtors® Exclusive Buyer Broker Agreement (EBBA) or their company’s own exclusive agreement, the Realtor Code of Ethics Standard of Practice 16-6 provides specific guidance that limits how the Realtor or MLS participant can respond. It provides that Realtors should never directly or indirectly initiate a conversation about representation for the same type of services. But if a buyer initiates the conversation, this Standard of Practice provides that a Realtor may discuss terms for an agreement that will become effective after the existing EBBA with another firm expires. This narrow discussion is the only safe discussion, although the buyer’s first question will often be “How can I get out of my current EBBA?”

If a Realtor decides to review another company’s EBBA to advise on the seller’s legal rights and obligations, this could be unauthorized practice of law. If this isn’t enough reason to stay away from contract review, a lawsuit could also result if the buyer or their current firm suffers financial harm based on specific advice the Realtor gave.

So, what can a buyer do to try and get out of an existing EBBA? The buyer can always talk with the existing broker first to see if they can negotiate a friendly (or friendly enough to get the job done) unconditional termination. If that fails, the buyer should carefully read the agreement or consult a lawyer to see where they stand.

Showing Agreement

The Florida Realtors Showing Agreement (SA) is a nonexclusive agreement, so Article 16 doesn’t apply. This agreement provides that the buyer is interested in touring or negotiating a purchase, option or lease of one or more designated properties. Compensation is due if the buyer signs a contract for any of those properties during the term of the SA.

While there’s no prohibition against talking with a buyer who has a SA, that contract obligates the seller to inform “any other real estate licensee with whom the Consumer has contact that Consumer has contracted to work with Broker with regard to the properties listed above.” From a buyer’s perspective, they should make sure to disclose the existing SA and exclude any designated properties from an EBBA they decide to sign with a new firm. If both firms have SAs for different properties, then no modification is necessary.

Property Pre-Touring Agreement

The final type of agreement we’ll look at is the Florida Realtors Property Pre-Touring Agreement (PPTA). This agreement has the least number of strings attached, from a buyer’s perspective. While the PPTA does mention compensation, it’s in the context of this sentence: “If you wish to work with Broker to purchase property Broker shows you, Broker’s compensation for services Broker provides to you will be as follows...” Therefore, it’s unlikely that this agreement would conflict with any buyer agreement they sign with a new firm or trigger any ethical duties. Of course, it’s never a bad idea for the buyer or their attorney to carefully review all terms of the PPTA to ensure this is the case.

Joel Maxson is Associate General Counsel

Note: Information deemed accurate on date of publication

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