Can a listing broker put a conditional offer in the MLS?

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04/14/2016 | Author: Editorial Staff

I saw a listing in the MLS that offered compensation for cooperating brokers of that MLS. The listing broker wrote in the agent remarks that the compensation offered would be reduced if the contract closed after a certain date. Does this violate MLS rules?

Yes. MLS policy and rules require that a listing broker specify on each listing what compensation is offered to other MLS participants for their services in the sale of that listing. Such offers must be unconditional except that entitlement to compensation is determined by the cooperating broker’s performance as the procuring cause of the sale. The offer you described appears to be conditional and therefore prohibited by the MLS policy and rules.

Update: Please note that this does not prevent the listing broker from offering compensation other than the compensation indicated in the MLS, provided the listing broker informs the other broker in writing in advance of submitting an offer to purchase.  

Read more legal questions and answers on texasrealestate.com.

Categories: Legal
Tags: legal faq, legal, mls, mls offers


Comments

Stuart Scholer on 04/27/2016

MAAAANN!!! I cannot believe some of this stuff….
I am going back to listening to Donald Trump (for entertainment that is).... at least he really knows that HIS schpiel is full of twists and turns.  I wish HE was the HAR Chairman! Then he could weigh in on this conversation and settle it for good and MAYBE even make more sense than some of these folks here! Now that IS embarrassing! 
  BTW… Since when did the Texas Legislature start writing laws controlling BTSA’s ?????  So how is MY grammar? Guess what my native language is.

Rick DeVoss on 04/22/2016

Max—- Would have to agree.  (Please let me know if you found any problem with anything I had to say, as I am still learning, too.)

Richard—- You made some good comments.  But please allow me to clarify.

I get a little tired of people throwing around the “price fixing” card.  I did not say anything that could be construed as attempting to “set” commissions, or even discuss specific commissions.  ...I used the word ‘normal’ on purpose to avoid such types of discussions.  I’ll bet you money that the average man on the street knows what a real estate agent ‘normally’ makes on a transaction.  And I’ll lay that bet one step further:  if you pull up any number of listings in the MLS of your choice, you will find that the majority of them are advertising a 3% BAC.  ~That is not only a fact, it is public information.

I realize that I was dreaming when I said I’d like to see the variable commission thing abolished.  (You are quite right when you say that the seller and the listing broker can negotiate any amount they want on the listing side.)  But I guess I am seeing that a buyer who chooses to make an offer through the listing broker is not getting the same level of representation that he would get from a buyer’s broker.  ~His offer is less competitive if there is a variable commission agreement in place.

As for who does the bulk of the work… we could discuss that one forever.  In my 36+ years in this industry, I think I have always done more work with the buyer than I have with the seller.  So many agents get listings dumped in their laps, and typing the data into the MLS seems to be the most that they do.  I particularly dislike the practice of some agents who solicit listings at a highly discounted commission rate, and then think they can unilaterally cut the buyer’s agent’s commission.  Some of our hard working listing agents live in another city far away from the property in question, and they have never even Seen the house!  ~Whatever happened to the concept of referrals??  ~What kind of service can you provide a seller if you have never even walked through the house??

Yeah, I know we all have our own different ways of doing business….
And it is not like it was when I used to pack the MLS book around under my arm.

 

Max Kidd on 04/22/2016

Some of the posts on here are just flat out embarrassing. No wonder TREC keeps requiring additional training hours. Maybe TAR lawyers need to breakdown their explanations to the third grade level. So much misunderstanding.

Richard Ryon on 04/22/2016

Rick, you make some very good points, however, two things need to be corrected. One, there is no “normal” commission. All commissions are negotiable. Stating that any rate is “normal” is a great way to get in trouble regarding price fixing. As you stated, let’s not bring that into our conversations. Along the same lines, Sellers and Agents can negotiate whatever terms they are willing to agree to, including VRCs . MLS is only providing the disclosure of VRCs, they cannot “abolish” them. As an industry, we are continually under close scrutiny for anything that appears to be an attempt at setting or controlling the fees we negotiate with our clients.  We need to be very careful to avoid any appearance of doing same.
Finally, I disagree that Buyer’s agents do the bulk of the work. Listing agents may work for years making many contacts with property owners before an owner is ready to go to market. Preparing professional CMAs and negotiating good terms for the listing are critical to you, as buyer’s agent.  Convincing a seller to put a good price on their listing that your buyer can get excited about does not happen without a lot of work. Also, what would you be showing your buyers if listing agents weren’t providing you with inventory? You apparently don’t list much, or you would know there is a great deal of work involved in getting the listing as well as communicating with sellers while marketing the property. Marketing materials, ads, signs, disclosures, and more must be prepared as well. Granted, after an offer is accepted the buyer’s agent may have more to do securing financing, inspections, etc, but the listing agent has done a great deal of work prior to the property even coming on the market! Are there lazy listing agents that don’t carry their share of the work in negotiating and closing the sale? Sure! Just like there are lazy buyer’s agents that don’t do their share. As listing agent, I have had to help buyers get financing and more because the buyer’s agent was new, knew nothing, and their broker was worse! We all do what it takes to make a deal; Welcome to the real estate business!  Some would even say agents that only TAKE from the inventory by working only buyers, without bringing properties to the market, are lazy. Try listing for a change. You will find that it is not as easy as it looks, and you will be contributing to maintaining a healthy market by supplying listings for other agents to sell. In my experience, more listings will attract more buyers to you too!

Rick DeVoss on 04/22/2016

I’m sorry, but I could not sit quietly by any longer.  I have to go back and comment on what you wrote in the first reply to this article.  (4/14/16)

Who are You to disagree with the editorial staff and the attorneys of TAR??  Nobody was talking about anything to do with “price fixing”, and that very comment has no place here.

Sure, the seller might wish to change the Listing Agreement before he gets an offer on his house.  But he can only do that with the consent of the Listing Broker.  And it only affects the buyer’s agent IF you publish the change in the MLS offer of compensation.  And since most of us will Never get to even see the Listing Agreement, we would never be aware of said change.

Offering a bonus to a selling agent is NOT an example of a variable commission.  (You should look up the definition, ...and re-read it so you’ll comprehend it.)  A bonus based upon the performance of the buyer should never be offered to his agent.  It is too likely to create a conflict of interest.  Most of the time, an agent has no control over the buyer’s actions anyway, so why should the agent get a bonus??  ~If a buyer wants to make an offer on a house, he will do it without his agent getting any bonus from the listing agent.

A ‘Variable Commission’ only relates to what the seller has to pay when the agent who submits an offer is working for the listing broker.  (It could be the listing agent, or another agent in the listing broker’s office.)  This kind of an offer puts the buyer at a disadvantage if he is working with an agent from another office or broker. 

For example:  if two offers hit the table at the same price (say, full price), then the seller pays less to the listing broker for an offer from his office than he would have to pay for an offer from another broker.  This makes the seller’s net higher, and gives an advantage to the offer from the listing broker.

Since this whole concept is contrary to the idea of having “buyer representation”, I would personally like to see the practice abolished.  (...Besides, there are so many agents out there who do not understand it, we might as well do away with it.)

I’m not sure what you meant when you said that “commission rate levels in MLS are dictated by representation levels.”  ~If you are talking about the level at which the buyer gets representation, then you are off base, since the stated commission in MLS is what the buyer’s agent gets paid, regardless of the level of representation he gives the buyer.

~And if you are talking about the level of representation given the seller by the listing agent,  then you are confused as to what paying a commission is all about.  Even though you may not work too hard for the seller, and therefore not have earned much commission, the buyer’s agent has done the bulk of the work by finding the property, showing the property, writing an offer, presenting & negotiating the terms of the offer, working with the lender to get the buyer’s loan approved, dealing with inspectors, and making sure the title company has all the documents needed for a successful closing.  (plus other things)

It sickens me to see agents who think they can short-circuit the system by simply typing the property data into MLS, and then abandoning the seller in the transaction.  And just because they have agreed to work for less than a normal amount of commission doesn’t mean that the buyer’s agent should have to!    ~None of that has anything to do with a “variable” commission rate.

And you keep referring to the listing agreement.  ~Just when does the buyer’s agent ever get to see a copy of the listing agreement??  —Do you post it on MLS for us to read prior to showing your properties??  —-Do you give a copy to the buyer’s agent after he submits an offer??  —Do you even send a copy to the title company so that the transaction may be closed with the knowledge of what the seller signed in advance??

It might help all those who are reading these blogs if you would stop throwing around terms that you do not fully understand.  ...There are many valuable C.E. courses out there, and I suggest you take more than the minimum number of hours.  ~I also could recommend that you sit down and discuss a few things with the attorney at your favorite title company.  They have a wealth of information available to you!

 

David Davis on 04/22/2016

Rick, I am not bullying anyone!  I am merely defending my position.  I have done nothing here but stated facts and procedural processes within the Houston MLS system.  I did not make those rules.  I have made recommendations to some of the current MLS rule changes (just like any current member can), and some have been approved, and some were not.  As I have said multiple times throughout this blog, there seems to be a big confusion in the terms of reduction and elimination.  No the terms cannot be changed once an offer has been submitted.  We all know that.  Well, maybe the terms could be changed. But the terms that were in affect at the time the offer was submitted would apply.  It doesn’t take a genius to figure that out.

Rick DeVoss on 04/22/2016

David—- Please stop bullying everyone.
Several of your comments are just pain wrong.
Many other people have written valid remarks on these blogs, and it will benefit everyone to read them with an open mind.  ...We all might learn something.

David Davis on 04/22/2016

In fact, I have read them.  Perhaps the difference here is I comprehend what I read?

Greg Ruehlen on 04/22/2016

@David Davis. How can someone who is so certain he is correct be so wrong? You clearly do not understand the concept of VRC . Read your MLS rules! Also, you are conflating BTSAs expiration dates with contractual contingencies.  The listing broker has the right to change the compensation he/she is offering to cooperating brokers at any time prior to the receipt of an offer.  So, if I put the offer in prior to the expiration date, the BTSA applies. If I put it in AFTER the expiration date, it does not. This is not a violation of any rules. Making a BTSA contingent on a specific performance measure (closing date, offer price, etc…) is what is forbidden by the MLS rules.

Barbara Polk,GRI,CRS,LTG,CRB,ePRO on 04/22/2016

It does my heart well to see so many agents taking the time to converse about the subjects we, feet on the ground, are so capable of working this out with the assistance of the legal department.  David Fair must be so happy to see all of this after what he and GE Irby (God rest his soul) did for us in the maturation of all the contracts and addendums, etc. Great minds and you folks are making them proud.  Keep up the thinking and we appreciate your time we all benefit from it.

Jarod Marcus on 04/21/2016

Perhaps it is time to remove compensation from the MLS altogether.  Listing agents can get paid whatever they are worth from their sellers, and buyer’s agents need to start getting their Buyer’s Rep Agreements signed, and be paid what their services are worth.  Buyers on limited budgets can always use Paragraph 12 to negotiate their additional closing cost, if they cannot cover it. 

With the proliferation of foreclosure, short sale, and FSBO listings in our MLS, that are shortchanging OUR paychecks, not to mention the discount listing agents who pass along the savings through OUR paychecks, I have the compensation discussion with my buyers upfront.  I explain that while I am there to protect them (the buyer) and watch out for their best interest, I do this to earn a living.  It is how I pay MY bills and feed MY family.  If a buyer cannot understand that position, and feel that I am not entitled to earn a living while helping them, then I show them the door.  Most buyers are understanding and happy to see us get paid for a job well done. 

That said, it is high time that everyone starts paying for their own representation.  It would eliminate this nonsense of conditional offers, bonuses, “if I show your buyer…”, etc.  It would also correct the offers of “non-compensation” (the clown in San Antonio who lists FSBOs all over the state, offering on some of his listings a co-broker fee of $1.00).  It’s hard to focus on our clients’ needs when we are worried if WE will get paid, which is not fair to our clients.

Rick DeVoss on 04/21/2016

There are so many things wrong with stuff that has been said here, and with attitudes one sees from agent’s remarks in MLS.  (Do Brokers have to approve all the remarks that agents put in MLS, or do some of Them need more education as well…??)

>  Why is everyone quoting what the “Listing Agreement” says…??  When was the last time that a buyer’s agent got to see the Listing Agreement?  —-How many agents send the Listing Agreement to the title company to document what the seller said he would pay the two brokers?

> I take offense at (David and others) saying that you will pay me “50%” of whatever commission the seller pays.  (That is a bunch of crapola.)  The amount to be paid the Buyer’s Agent should be shown in MLS by either a dollar amount or a percentage of the sales price.  It is then fixed when I submit an offer from a buyer.  ~There is nothing that says the listing agent earned “50%” of the commission paid by the seller.  Example:  if he took the listing at 5% just to get it, then maybe the listing agent gets 2%.

The whole point here is that the amount offered to an agent that brings an offer on the property has to be fixed BEFORE the offer is brought in.  And, it cannot be conditional on something that is in the contract, or dependent on the buyer’s actions.  By definition, a “commission” is rewarding an agent for his action of bringing the seller an offer.  No where does it say that the seller gets to re-think his offer of paying a commission After the agent brings him an offer!  (...and that includes Banks!)

You should not even be thinking of offering a “bonus” to an agent for the buyer’s performance of closing in a shorter amount of time.  You should be talking about a bonus if the agent brings you an offer in a shorter amount of time.

> Way too many agents do Not understand the term “Variable” commission!  It does NOT mean that the buyer’s agent’s commission will ‘vary’.  ~It means that the amount the seller pays to the listing broker will vary, dependent upon whether or not an in-house agent brought the buyer to the table.  ...But the amount of commission to be paid the the buyer’s agent will remain the same as was quoted in the MLS offer of compensation.  ....(The “variable” part is on the listing agent’s side of the equation.)

* The whole point of the opinion given above by the staff…is that the agent’s commission amount cannot be changed After the offer is submitted and not by anything in the contract.

By offering an MLS-based commission, we are rewarding another agent for finding a buyer for our property.  It is obviously dependent upon having a closing, but other than that, you cannot make it conditional.  ...If you don’t want to pay another agent a decent fee for selling your seller’s property, then sell it yourself, and keep it out of MLS.

Here’s another Example:  If you list (in MLS) a property on Friday at 3%, and 13 agents show it on Saturday, you cannot come in on Saturday night and change it to “2%”, or some other number, anticipating that one (or more) of them is going to bring you an offer on Sunday or Monday.  ...Yea, I know it may be “legal”, but it is UN-Ethical…!
All agents should know what the compensation offer is before they show the property.  That allows them, and their buyer, to decide how they want to deal with that particular listing.  —-The same thing is true for a “variable” listing.  (I am not compelled to waste my time showing it, knowing that the listing agent’s offer has an unfair advantage over my buyer’s offer.)

Maybe we should back up and remember that we are representing the best interests of our two clients.  ...And stop all this back stabbing of other agents.  ~Pay the buyer’s agent what their efforts are worth!  ~Didn’t they, in fact, cause the house to be “sold”...?

Mark McNitt on 04/21/2016

I was under the impression the variable rate paid was if the agent bringing the Buyer/Renter was not a member of the local MLS.  We are licensed in Texas, so I can sell a home in Dallas as much as I can in Houston.  However, the listing agent who is offering a commission in their MLS that local agents have access to) might pay me less because I’m not a member of that local board.  This listing agent might have to accommodate me differently (no access to lock box, different documents, etc) and thus wish to pay me a lower commission that the local agents for the extra work they are providing). 
I agree that the Seller can change their mind on what they wish to pay their listing agent (and I would hope their Realtor would have these changes in writing!) , but the listing agent is going to pay what they are advertising to the agent bringing the Buyer/Tenant regardless once a contract is signed with the exception that they are not part of the local board of Realtors where the transaction takes place. 
Let me know what you think.  This was my impression.  At the end of the day, I want to get my clients properties sold/leased and I try not to throw red flags at anyone.  Working together is the best bet.

Richard Ryon on 04/21/2016

What I see the people that are disagreeing with the answer provided in this article are missing are the definitions of Variable Rate Commission (VRC) and Conditional Commission (CC) AS DEFINED BY MLS. Richard Weeks quoted the MLS definition of a VRC in his post on the 14th. READ IT! While you can say that changing a commission varied the commission, it IS NOT necessarily a VRC when applied to MLS. The ONLY situation that fits the definition for VRC’s when applied to MLS is the one provided.
CC’s, which are prohibited in MLS, are commissions that are changed based on TERMS IN THE SALES CONTRACT. A good example of why they are prohibited is the case of commissions being reduced say, 2% , for offers less than full price. This creates a difficult to manage conflict with the buyer’s agent’s fiduciary duties to their client. The small decrease in our fee when we get our buyer a better deal at a lower price is manageable. A wholesale reduction would damage the trust buyer’s have that their agent is putting their interests first, even if the agent was able to work past it, which is doubtful.  While not as easily seen, the listed case of conditioning the amount of the fee on a quick closing date which will be IN THE CONTRACT again pits the buyer’s agent’s interest against their client’s. Is the inspection rushed in order to meet the deadline? Perhaps shopping for the best loan rate is skipped, or a lender with higher rates but quicker closings is the only one recommended. These are entirely different from BTSA’s expiring or changes in commissions offered through MLS that are not conditioned on TERMS IN A SALES CONTRACT. This is done, wisely by MLS, to avoid incentives that pit buyer’s agents against their clients.
So, sorry David, you were not able to stump the attorneys, they are right. Maybe next time. As you stated, “Read the Rules”. When you do this STRICTLY interpret the definitions, i.e. all commission changes are NOT VRC’s, at least not for MLS. And commission changes not related to required sales terms, like a BTSA that expires, are not CC’s.

Ward Lowe on 04/21/2016

An update from the TAR Legal Department was added to the bottom of this post on April 21.

David Davis on 04/16/2016

Being and attorney is no different than being a broker.  They are human and can make mistakes.  Read your MLS rules.  They are afterall, what governs here.  If the Editorial Staff (and attorney) are correct here, then all those BTSAs that have expiration dates on them are illegal!  Those are reduced commissions.  If they are illegal, why then does the MLS even allow (by field input) them?  What about the variable rates?  Again, if not allowed/legal, why does the MLS allow (by field input) them?  I think the thing here is people are getting “hung up on” is reduction -vs- elimination of commission, or changing a commission without disclosure.  Those are admittedly illegal and not allowed.  Whatever you say you will pay (as the listing broker) you MUST pay!  No exceptions!  That we all agree upon!  What I am saying, is there is nothing that says what dictates what I will say (as the listing broker) I will pay (that would be price fixing, whole other conversation that we won’t get into here).  What I will pay can be changed as often as I (as the listing broker, and my seller, where applicable) like and agree upon!

Ward Lowe on 04/15/2016

The TAR general counsel has reviewed the comments on this post and again reviewed the post itself. She stands by the answer given and invites anyone with questions to call the Legal Hotline at 800-873-9155.

David Davis on 04/15/2016

The key word here is REDUCED. Had the Editorial Staff (or the listing broker for that matter) said ELIMINATED then the statement would be TRUE!  The listing cannot remain in MLS unless there is an agreement to pay the cooperating broker a commission.  That is a true statement.  What is NOT a true statement is that the reduction of a commision is not allowed after a certain time.  This is allowed for and under a multitude of reasons already discussed.  So long as the reduction does not reach $0.00 it is allowable!

Chuck Green on 04/15/2016

Hi Ward, Thank you for letting me know that legal is reviewing the blog comments.  I look forward to further clarification on this question.

Ward Lowe on 04/15/2016

@Chuck: TAR attorneys supply the opinions and answers for all legal content on this website, including blog posts.

Chuck Green on 04/15/2016

I agree with David and Debbie.  TAR jumped the track when they commented on compensation based on procurement rather than the question regarding reduced compensation after a certain date.

It is doubtful that an attorney for TAR wrote this answer; TAR should correct the answer.

David Davis on 04/14/2016

Yes Debbie, HAR does allow variable rate commission.  Correct, this has absolutely nothing to do with procurring casue.  As I have already stated, if the listing broker states in MLS that they will pay a certain rate for a certain period and different rate afterwards, that is accpetable.  Much the same way BTSAs are handled as when they are offered and ultimately expire.  I think what the Editorial Staff may have been trying to convey here is if the listing broker suddenly said NO commission, that would be a violation.  A reduced commission is not a violation .  Once the NO commission comes into play, the listing MUST come out of MLS!

Richard Weeks on 04/14/2016

Lot of misunderstanding about what a variable rate commission is.

Debbie Russell on 04/14/2016

This article is not about procuring cause.  I agree that if a variable rate commission can be offered which is conditional as it relates to dollar amount than a variable rate commission should be allowed as it relates to close and fund time.  Perhaps the authors need to rethink this.  If it’s in the listing agreement and if it’s in the MLS I don’t see the problem, either variable rate commissions are allowed or they are not allowed.  HAR.com does to my knowledge allow for the variable rate commission.  Perhaps the error occurred when the listing broker did not list it as a variable rate commission…?

Richard Weeks on 04/14/2016

Sounds like someone needs to know what a variable rate is.  Here is the correct meaning:
“The REALTOR® Code of Ethics defines a variable-rate commission arrangement as a listing in which one amount of commission is payable if the listing broker’s firm is the procuring cause of sale and a different amount of commission is payable if the sale results from the efforts of the seller or a cooperating broker.” It does not mean one can just change the amount published in mls.

Bob Dolen on 04/14/2016

I looked again. I’m sorry David but the article itself doesn’t mention any thing about the agreement btwn seller an l/a. I guess I should have inferred that. Right?  Not!

Bob Dolen on 04/14/2016

Mark, I agree with you. It’s almost as if they’re threatening you to keep a portion of the buyer side if they hold an open house that your clients visit.
I see this comment from kwms agents quite often.

David Davis on 04/14/2016

Bob, Your grammar/language/English skills speak both for you and themself!  I have read the article!  My comments address the article.  They happen to dispute the Editorial Staff’s opinion, and very clearly state why they dispute the view of the Editorial Staff.  If you cannot read, and comprehend what you read, please don’t blame that on me!

Bob Dolen on 04/14/2016

David Davis. Maybe you should read the article again yourself. Mark is spot on. You are the one who must have landed on the article and are off topic. Or way out on another tangent.

David Davis on 04/14/2016

@Bob No sir, I am not wrong.  You are correct, the advertisement in MLS is a unilateral agreement to pay.  What I am saying is that the Seller/Landlord can change the terms of commission being offered based upon when the property sells/leases.  It is a common property ownersip right.  If you own property, you get to dictate the terms by which you will sell or lease it (provided they are within the law).  If I hire you as a REALTOR® to sell my house and tell you that I will pay you 10% of the sales price if you sell it within 10 days, but only pay you 6% of the sales price if it sells after the 10 days, and you agree to pay any co-operating broker 50% of the commission, and you agreee to those terms, there is nothing wrong with those arrangementments, or with advertising those arrangements.

Bob Dolen on 04/14/2016

David Davis you are wrong. The offer in the MLS to pay compensation is what creates the “contract” to pay the co op broker.  It makes no difference how much the listing agent gets from the seller. If the seller doesn’t pay the listing agent anything, the listing agent still has to pay whatever was advertised in the MLS.

David Davis on 04/14/2016

@ Mark Did you land on the right thread?  Seems a bit off topic.

Mark McNitt on 04/14/2016

I see this on listings from time to time (sale and lease).  Listing agents and others in their office show their listings only to find out the prospect is using another Realtor.  Putting this verbiage about a lower commission gives a bad impression that this Realtor may be difficult to work with.  I would suggest asking the prospects up front if they are working with a Realtor BEFORE showing.  Also provide the IAB form as required and this might remind the prospect about their Realtor’s obligation.  Of course I show my own listings to those prospects that ask as a service to my Sellers.

David Davis on 04/14/2016

I am going to disagree with the Editorial Staff here.  The commission paid to the listing broker and/or the selling broker can be adjusted by the Seller at any time they want during the listing agreement.  Not allowing this would be “price fixing”.  Stating in the MLS that the rate is variable is allowable, in fact it is selectable as a feature in Houston.  The allowance of BTSAs is an example of variable rates for performance based upon time.  Also frequently representation levels dictate commision rate levels in MLS.  These are all spelled out in the listing agreement.


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