Did My Offer Get Presented?

Did My Offer Get Presented?

One of the crazy-making moments in the world of real estate occurs when this happens: The buyer’s agent submits a written offer to the listing agent; and, then, after the time that was allotted for a response has expired, there is no response. No acceptance, no counter-offer, no rejection, nothing. There is no word from the listing agent, who now can’t be reached and is not returning calls. Nothing.

Beginning next year, for the majority of agents doing business out there, such a scenario should occur much less frequently. That is because an amendment to the Realtor® Code of Ethics was approved by the directors of the National Association of Realtor(s) (NAR) on May 19, 2018. It will become effective January 1, 2019. The amendment, Standard of Practice 1-7, is as follows:

Upon the written request of a cooperating broker who submits an offer to the listing broker, the listing broker shall provide 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.

For some time the Code has obligated Realtors® to submit offers and counter offers “…objectively and as quickly as possible.” They have even had an ethical duty to submit offers after a property has gone into contract or escrow. (The duty could be overridden by a seller’s instructions not to do so.) But, until now, there has been no duty to confirm to a buyer’s agent that their offer has been submitted to the seller.

Why would a listing agent not present an offer that had been submitted by another agent? The most nefarious reason – and therefore the one that is immediately suspected – is that the listing agent has already presented an offer from a buyer that he or she also represents [dual agent] and doesn’t want any competing offer to get in the way.

Of course, there may be non-sinister reasons as well. In some hot markets the number of offers may be in double digits. Even if they have all been presented, the listing agent just doesn’t want to spend the time responding to the many that might not have even merited a counter. And, of course, the seller may have instructed the listing agent not to present offers below a certain price, or that contained objectionable terms (such as seller financing, lengthy escrow, etc.). Buyers’ agents should have been informed of such limitations, but it may be that neither they nor their clients felt deterred by these pronouncements.

Whatever reasons might have been given, now they will not excuse a Realtor® listing agent for being silent. The agent must either affirm that the offer was presented or that the seller has “…waived the obligation to have the offer presented.”

It should be noted that the broker requesting the response must do so in writing. Sometimes agents are reluctant to do something like this without a form. No doubt such a form will be forthcoming and/or offer forms may be adjusted to include such a request provision.

For California Realtors® there is a letter, Demand that Offer be Presented to Seller, (Letter DPO) in the CAR Sample Letters library that is available in zipForms.

One last thought: Did I mention whether all this also applies to offers/applications to rent? Apparently it does. Note the “seller/landlord” language.


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