This past week, we have fielded a few similar questions about how best to proceed when a consumer says their agent isn’t available (or not returning their calls) but they want to see a house ASAP and proceeds to contact the listing agent directly.  What does the listing agent do?  At what point should you be discussing buyer compensation offers (if any)?  What a complicated situation now that buyers are under written contractual agreement with their agent!  Of course, we always encourage you to reach out to the agent and / or broker in charge directly but if you get crickets, we posed this question to the MAR Legal Hotline on best practices moving forward. Thank you to Kate Berard for her response:

This is a complicated question and as with most things, depends very much on the language in the respective fee agreements.

Certainly, you want to work in the best interest of your seller client and that would be to show their property, usually quickly and often! At the same time, it can be challenging to balance what may transpire in this scenario from a Code of Ethics, agency and compensation standpoint.

It is important at the outset to suggest that the potential buyer review their buyer agency agreement to determine whether they would still be obligated to compensate the agent they have an agreement with; they should be armed with this information before proceeding. You may even wish to request the agent’s information and get in contact with them or their broker, being mindful of Code of Ethics, Article 16 considerations.

If you are still in a position where the consumer wants to get into the property and there has been no contact with their agent, look to the terms of your listing agreement when assessing what, if any, offer of compensation should be relayed to the buyer. Is the offer of compensation a buyer concession? Is the offer of compensation an offer between businesses if a buyer broker procures a buyer? Or if the buyer broker works to successfully close the deal? Knowing what it is you have the authority from the seller to convey is a crucial step. Once you know what the seller has instructed you to offer, I would suggest sharing this information with a potential buyer as a means of being transparent.

Please note two items:  The Contract & Forms Committee is working on the Exclusive Right to Sell agreement to add the ‘procuring cause’ statement to the offer to the language in the agreement, but it already exists very clearly in the Cooperating Broker Compensation Agreement form #311 to secure this commitment between brokers and is integral to the PS for seller compensation.

Second, Kate referred to Article 16:  REALTORS® shall not engage in any practice or take any action inconsistent with exclusive representation or exclusive brokerage relationship agreements that other REALTORS® have with clients. (Amended 1/04)