The Division continues to receive complaints by prospective buyers and their buyer’s brokers that some listing brokers are not presenting buyer’s offers to the seller. An additional complaint is that those listing brokers are refusing to present offers to their sellers unless a particular contract software is being used. Also, there are reported instances where a buyer is represented by a brokerage firm that uses a varying commission model and submits an offer, and that offer is not being presented by the listing broker to their client.
Potential license law violations
These actions can be viewed as reducing the buyer pool and those brokers placing their interests before those of their clients, which can be considered a violation of the license rules, and their Uniform and Fiduciary Duties.
Brokers should be aware that the real estate broker license law requires that a broker present all offers received to their seller client. A real estate brokers cannot refuse to present offers to their sellers just because a particular contract software is not being used by the buyer’s broker. These actions are not in the best interests of their clients, and are furthermore harming their clients by reducing their client’s property’s competitiveness in the marketplace. It can also discourage brokers who do not use this brand of contract software from showing properties.
These practices bring up many questions
- Are these actions intended for the benefit of the Seller or Broker?
- Doesn’t the choice of contract software primarily benefit the Broker?
- Shouldn’t an offer from a broker using a varying commission model be treated or presented the same by the listing broker?
- Would these practices create a smaller buyer pool thereby risking a lower price and possible extension of the days on market to the Seller?
- Are these practices promoting the interests of Seller with the utmost good faith, loyalty and fidelity?
- What are the pro’s and con’s for the Seller in these instances?
- Would any of these practices have likely been approved by Seller if all the pros and cons were fully discussed?
- Must these actions be fully discussed and disclosed to the Seller in the Listing Contract?
A broker cannot restrict a pool of buyers by limiting or refusing to provide their seller client offers received without discussing with their client the advantages, disadvantages, and ramifications of doing so, and any such limitation must always be memorialized in writing in the listing contract.
A complaint received by the Division in this regard would be investigated to see if a broker did not present an offer to a seller client, and if any full and proper discussion, explanation, and disclosure had been provided by the listing broker to their seller, with a failure to do so possibly resulting in grounds for discipline.
Difficulties presenting offers
As a buyer’s agent, what if you are having a difficult time presenting your client’s offer to the listing broker? Then you can fall back on Commission Rule 6.13 - Offers must be Presented to Other Broker, whereby it states:
“A Broker must present all offers to the other Consumer’s Broker if such other Consumer has an unexpired Listing Contract. If the Broker has made reasonable, but unsuccessful, attempts to present an offer to the other Consumer’s Broker, the Broker must present the offer to the other Consumer’s Broker’s Employing Broker. If no Employing Broker exists, or if reasonable attempts to present the offer to the Employing Broker have failed, the Broker may present the offer directly to the other Consumer.”
Under § 12-10-404, C.R.S., a single agent engaged by seller or landlord has certain duties and responsibilities, including, it states in Part (c)(II) “Presenting all offers to and from the seller or landlord in a timely manner regardless of whether the property is subject to a contract for sale or a lease or letter of intent to lease.” Similar language found in § 12-10-405 and § 12-10-407, C.R.S., pertains to a Single agent engaged by buyer or tenant, and a transaction-broker.
EXCLUSIVE RIGHT-TO-SELL LISTING CONTRACT
Furthermore, in the EXCLUSIVE RIGHT-TO-SELL LISTING CONTRACT, section 5 states under: BROKERAGE DUTIES - “Brokerage Firm, acting through Broker, as either a Transaction-Broker or a Seller’s Agent, must perform the following “Uniform Duties” when working with Seller”:
- “5.1.1 Presenting all offers to and from Seller in a timely manner regardless of whether the Property is subject to a contract for Sale.”
- In addition to any regulatory discipline, a listing broker not presenting offers to their client pursuant to the listing contract could be in breach of that contract and their fiduciary duties as outlined in that contract. This could result in civil liability for the broker if their client was harmed financially.