BARRISTER'S BRIEFING: Get the Proof: Ensuring Your Offer is Presented

Brian Levine | April 12, 2021

Brian Levine, Esq.

People are out and ready to buy. Offers are coming in by the boatload. Highest and best is the order of the day. Today, the market is hot and, as a result, I am getting calls and e-mails about the presentation of offers. Sometimes concern arises after a cooperating agent learns that the listing broker has the buyer/tenant with the accepted offer. Other times the concern comes from a cooperating agent that is certain they had the best offer, and they didn’t get the deal. Still other concerns arise when there is a question of possible discrimination. Either way, the inquiry and request for guidance often comes too late. So, this article will look at the best practices for ensuring that your offer is properly presented.

OneKey MLS Offer Acknowledgment Form And the Sworn Declaration Statement

OneKey MLS Rules and Procedures Section 406 provides a mechanism for a cooperating agent to confirm that their offer was presented. Under Rule 406.1 a cooperating broker can submit with an offer a request for completion of an Offer Acknowledgment Form. This form sets forth the terms and conditions of the offer and provides for signed acknowledgement from the owner that the offer was presented. This form is then returned to the cooperating agent. (See Rule 406.2, 406.3). If the owner refuses or is unable to sign the Offer Acknowledgment Form, then the listing agent (or any other licensee of the office) must provide a Sworn Declaration Statement to the cooperating broker stating that the offer was presented to the owner. (See Rule 406.4).

Timing and Fines

Most importantly, under Rule 406.5, either the Offer Acknowledgment Form or the Declaration Statement must be returned to the cooperating broker within two hours. Even if an offer is presented without a request for the completion of the above forms, a cooperating broker may still make the request at some point after the offer is presented. The only difference is that the listing agent must provide the appropriate documentation within 24 hours.

If the listing agent fails to timely provide the executed documents, the cooperating broker may contact a Rules Enforcement Facilitator for assistance. Failure to provide the documents to the Facilitator will prompt an automatic fine of $250, which will double to $500 if it is not resolved in one day. The fine will increase to $750 if not resolved within three days and can rise to $1,500 if not resolved within five or more days (or it may be referred to the MLS Rules Enforcement Committee for a hearing).

Code of Ethics Affirmation of Presentation

The OneKey Rules and Procedures isn’t the only vehicle through which a cooperating broker can request proof of an offer presentation. The Code of Ethics under Article 1, Standard of Practice 1-7 states:

Under 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.

Under this provision, when a cooperating broker presents an offer, similar to the OneKey Rules and Procedures, they can request that an affirmation be filled out by the agent attesting that the offer was presented. The response must be given “as soon as practical” and this may be interpreted as referencing the timing of OneKey Rule 406.5 (either two hours or 24 hours, whichever is applicable). Failure to provide the response, or a written notice from the seller/landlord that they have waived the obligation to have offers presented, within this time period may be deemed a violation of the Code of Ethics and subject the offending party to discipline that can range for a letter of warning, to up to a $15,000 fine, and possible membership or MLS suspension.

Cooperating Broker’s Right to Present Offers

A little known and rarely used OneKey MLS Rules and Procedures provision provides one additional way a cooperating broker may confirm that their offer is presented. Under Rule 405.4 a cooperating broker (or representative) has the right to “participate in the presentation to the seller or lessor of any offer he secures to purchase or lease, unless instructed otherwise by the seller in writing.” This provision means that the cooperating broker can physically be present if the listing broker presents the offer in person. If the offer is being presented via e-mail, the cooperating broker must be cc’d. If the offer is being presented over the phone, the cooperating broker must be on that call. Through this provision, the cooperating broker can confirm that not only was the offer presented, but that it was presented objectively (Code of Ethics Article 1, Standard of Practice 1-6 requires all offers to be presented objectively). If, the seller or lessor has waived this right in writing, the cooperating broker must be provided a copy of this writing within two hours of the request.

What this provision does not permit is that the cooperating broker can dictate when the offer or how the offer is presented. It also does not permit the cooperating broker to be present for any discussions or evaluations of that offer.

Conclusion

The OneKey MLS Offer Acknowledgment Form and the Sworn Declaration Statement can be found on the HGAR website under Resources/Document Library/MLS Listing Agreement and Forms, or by clicking on the following links: OFFER ACKNOWLEDGMENT and REALTOR DECLARATION.

With the proper implementation of these forms and the application of these rules, a cooperating broker can obtain the security of knowing that all offers are property presented in an efficient, timely and objective manner. No Realtor should be left in the dark wondering if their offer was presented or whether some unscrupulous agent is trying to gain the upper hand in today’s already aggressive real estate market.

Brian Levine
Brian S. Levine, Esq. is In-House Counsel/Director of Legal Services & Professional Standards Administrator for the Hudson Gateway Association of Realtors.