Present Subsequent Offers After Buyer & Seller Under Contract?
After a buyer and a seller execute a purchase and sales contract, does the listing broker have to tell the seller about subsequent offers that come in? What does the Code say about this? Does it depend on the listing agreement language?
ORLANDO, Fla. — Dear Shannon: As a listing broker I presented an offer to purchase to my seller, which was $20,000 less than the property’s listed price. The property had been on the market for several months and had not generated much interest. I told the seller that, in my opinion, the offer was a good one, and seller should consider accepting it; explaining; “With interest rates on their way up again, properties are just not moving the way they did six months ago.” Seller decided to accept the offer and the transaction closed. Several months later, I was surprised when I found out the seller filed an ethics complaint against me, alleging a violation of Article 1, as interpreted by Standard of Practice 1-7. Somehow, the seller found out that a second offer had been made on the property after seller had accepted the first offer, but prior to closing. This second offer, seller complained, had not been submitted to the seller and was for $2,500 more than the first offer. The seller’s complaint stated that by not presenting the second offer, I had not acted in the seller’s best interest as required by Article 1.
Now I’ve got to defend myself at an upcoming professional standards hearing, and I really don’t I think did anything wrong. The seller signed and agreed to the terms of our listing agreement, which contains a provision that states: “Seller agrees that Broker’s responsibility to present offers to purchase to Seller for their consideration terminates with Seller’s acceptance of an offer.” I explained this provision to the seller during my listing presentation and seller agreed to it and signed the listing contract. Seller doesn’t dispute that they understood and agreed to this provision at the time I listed the property, but seller feels I should have advised them of the second, higher offer, nonetheless.
Can you help me understand what my obligations are here under Article 1, as it relates to my situation? I’m concerned.
Dear Concerned: Thank you for reaching out, let’s take a look at Article 1 and then Standard of Practice 1-7 and dig into how this might relate to your situation.
Article 1 states: When representing a buyer, seller, landlord, tenant, or other client as an agent, REALTORS® pledge themselves to protect and promote the interests of their client. This obligation to the client is primary, but it does not relieve REALTORS® of their obligation to treat all parties honestly. When serving a buyer, seller, landlord, tenant or other party in a non-agency capacity, REALTORS® remain obligated to treat all parties honestly. (Amended 1/01)
Under Article 1 you have a duty to promote the interests of your seller and sounds like seller believes that by not presenting the second offer you were not doing this.
Standards of Practice serve to help interpret the Articles under which they are written. Looking next to SOP 1-7: When acting as listing brokers, REALTORS® shall continue to submit to the seller/landlord all offers and counter-offers until closing or execution of a lease unless the seller/landlord has waived this obligation in writing. Upon the written request of a cooperating broker who submits an offer to the listing broker, the listing broker shall provide, as soon as practical, a written affirmation to the cooperating broker stating that the offer has been submitted to the seller/landlord, or a written notification that the seller/landlord has waived the obligation to have the offer presented. REALTORS® shall not be obligated to continue to market the property after an offer has been accepted by the seller/landlord. REALTORS® shall recommend that sellers/landlords obtain the advice of legal counsel prior to acceptance of a subsequent offer except where the acceptance is contingent on the termination of the pre-existing purchase contract or lease. (Amended 1/20) (emphasis added)
SOP 1-7 clearly requires you to continue to present offers until closing, however, there’s an exception to this directive. “Unless the seller has waived this obligation in writing,” is the exception to the obligation to continue to present offers until closing. In your situation, you said you have a written listing agreement which states: “Seller agrees that Broker’s responsibility to present offers to purchase to Seller for their consideration terminates with Seller’s acceptance of an offer.” Sounds like seller waived, in writing, the obligation to continue to present offers until closing.
You explained the listing contract provision to the seller relieving you of the obligation to submit subsequent offers to the seller, the seller agreed to the provision and signed the listing contract. It is unfortunate that the seller received less than full price for the property, but it sounds like you fulfilled your obligations under that provision of the listing contract once the first offer to purchase had been accepted by the seller. I cannot predict the outcome of a particular professional standards hearing, but given the circumstances you describe, I would find it hard to believe this is a violation of Article 1, as interpreted by SOP 1-7.
Inspired by Case #1-12: Presentation of Subsequent Offers After an Offer to Purchase Had Been Accepted by the Seller NOTE: Other laws and rules may apply.
Shannon Allen is an attorney and Florida Realtors Director of Local Association Services
Note: Advice deemed accurate on date of publication
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