I recently received this email from someone who follows my blog:
I’m faced with a situation whereby I submitted an offer to a selling agent. Documents accompanying my offer include 1) Form 310: Buyer Customer Service Agreement, 2) Form 810: Working With a Realtor, Form 320: Confirmation of Co-Operation and Representation, and d) Form 630: Individual Identification Information Record.
I recently purchased a property and submitted an offer on a different property using these forms with no troubles. The selling agent is saying he isn’t being paid for presenting my offer to the seller and that he doesn’t want to be faced with any risks with my offer. As such, my offer will not be presented to the seller. The agent told me to engage the services of a licensed real estate agent to submit the offer on my behalf.
What recourse do I have (without having to utilize the services of an agent to represent my interests)?
Well, that’s an interesting question. The short answer is that if a realtor doesn’t want to represent you, he doesn’t have to, and presenting an offer requires representation. That’s what the Buyer’s Customer Service Agreement is: a contractual agreement spelling out the terms of that representation. It’s required by law.
There are good reasons for a realtor to refuse to accept (and sign) the paperwork.
In a double-ender, where the listing agent agrees to act for the buyer, the buyer becomes the realtor’s “customer.” The realtor’s duties to a customer are nowhere near as onerous as they are to his “client,” the seller. And by law, once he represents both, the realtor can’t disclose motivations or bottom lines to either or advise them on price. So now they’re both swimming blind.
Personally, I don’t like double-ending. There is an inherent conflict of interest in it.After all, the seller wants to get the highest price possible, and the buyer wants to pay as little as possible. That said, it’s certainly not illegal to double-end, and lots of agents do it in a principled manner. I’m not one of them; I was a lawyer for too long to be comfortable acting on both sides of any issue.
Some buyers think that by dealing directly with the listing agent, they may get a price reduction, but the reality is that the sellers and their listing agent have already signed a contract, and what they’ve contractually agreed to pay as commission is between them: it has nothing to do with the buyer. Like this realtor, I may not feel I’m getting paid enough to do twice the work for double the risk.
But if a realtor is going to act for both buyer and seller, it’s the realtor who needs to do up the paperwork, not the prospective buyer.
This person admittedly completed and presented the offer forms using ones he obtained from a realtor in a previous offer situation. That’s a bit like going to see your doctor and walking out with his or her prescription pad.
OREA forms are for the use of licensed realtors. These contracts carry significant liabilities involving hundreds of thousands of dollars. They’re complicated. They were never intended to be used by laypeople.
I told the person who emailed me that if he really doesn’t want to have his own realtor, he should have a lawyer draw up the paperwork. But as for forcing the realtor to accept his offer? No recourse there, I’m afraid.
We have the right to decline to accept a customer, where we already have a client. I said I thought the realtor acted ethically, and that I would have done exactly the same thing.