Legal corner: Convey all offers, regardless of the timing, unless instructed otherwise

Note to reader: This matter was prosecuted under the Real Estate and Business Brokers Act, 2002.

For listing representatives, proper handling of the offer presentation process is critical. The conveyance of all submitted offers (unless subject to written direction) is an extremely important element.

Mishandling the offer process can have serious consequences, and a recent discipline matter about the non-conveyance of an offer provides a good example. Here is the sequence of events that resulted in disciplinary action.

Case summary

Registrant A, representing the seller, listed the property on a multiple listing service (MLS) with offers to be delayed for presentation until the following Saturday at 5 p.m.

On Saturday at 5 p.m., there were eight competing offers for the seller’s consideration.

Registrant B contacted Registrant A at 5:33 p.m. on Saturday indicating they wished to submit their buyer’s offer, which would have been the ninth offer.

Although the eight offers had already been presented to the seller, and the seller was already in the process of selecting their preferred offer, Registrant A agreed to allow Registrant B to submit their buyer’s offer for consideration.

At 6:18 p.m., Registrant B’s offer had not arrived, so the seller proceeded to negotiate with the preferred offer from the eight offers received.

At 6:26 p.m., Registrant B submitted their buyer’s offer, which the buyer felt was competitive and should be in contention as it contained no conditions.

Registrant A did not present Registrant B’s offer to the seller for consideration, believing it was too late to do so.

At 7:27 p.m., the seller accepted an offer (one of the original eight) that was $25,000 below what Registrant B’s buyer had offered.

Upon learning of the sale price details, Registrant B filed a complaint with RECO to understand why their buyer was not successful. Despite not having the opportunity to consider Registrant B’s buyer’s offer and the fact that it was $25,000 more than the accepted offer, the seller was satisfied with the outcome of the transaction.

Discipline

RECO’s discipline panel found that Registrant A breached the Code of Ethics by failing to convey the offer to the seller especially after agreeing to do so. Registrant A was fined $7,500 for breaches of sections 3, 4, 5, 24 (1), and 38 of the REBBA Code of Ethics.

Learning opportunity

It is critical for registrants to understand that they must convey all offers to their seller (unless there are specific instructions not to) regardless of the timing. The conveyance or presentation of offers must occur leading up to, during, and after negotiations have commenced, and even after they’ve concluded. This scenario is a reminder to not make commitments to other representatives without clear instructions from the seller and to communicate the seller’s instructions accurately.