The July 2021 Disclosure Form and Brochure stated that a broker must enter into a written buyer agency agreement “before preparing a written offer or communicating an oral offer.” Both the disclosure and brochure have been revised to match the language of Commission Rule A .0104(a) which requires that a broker representing a buyer enter into a written buyer agency agreement no later than the time one of the parties to the transaction makes an offer to purchase.
A broker may continue to use any remaining copies of the July 2021 versions of the disclosure and brochure without penalty.
While the disclosure form and brochure were revised to more accurately reflect the language in the rule, Commission staff advises that the best practice is for a broker to have a signed buyer agency agreement before preparing a written offer. Commission staff have seen cases in which a broker sent both a buyer agency agreement and a written offer to purchase to a buyer at the same time, but only received back the offer signed by the buyer. In a number of these cases, the broker then failed to comply with the rule by submitting the signed offer to the seller without having the signed buyer agency agreement. A broker who does not have a written agency agreement at the time their buyer makes an offer has violated the rule and risks both disciplinary action and not receiving compensation for their services.
Questions about the disclosure form should be directed to Regulatory Affairs at firstname.lastname@example.org or 919-719-9180.