Mishandling of delayed offer presentation, pre-emptive offer and multiple representation leads to discipline
Originally published in For the RECOrd (April 2022)
Case summary
A property was posted to the local multiple listing service (‘MLS’) stating that offers would be accepted by email on August 31 at 5 p.m. and included a notation that the “seller reserves rights to review pre-emptive offers.” The seller’s agent did not have written instruction or direction from the seller about delaying offers, nor about how pre-emptive offers would be navigated.
A pre-emptive offer was submitted through a buyer’s brokerage on August 26, which was presented to the seller but not accepted. The seller’s agent did not inform any other parties who had expressed interest in the property.
The seller’s agent then showed the property to a prospective buyer who was also represented by the seller’s agent. This happened after the first pre-emptive offer had expired. The listing agent’s buyer made a pre-emptive offer, which was accepted.
The listing agent again did not inform any parties who had expressed an interest in the property (including the buyer who made the first pre-emptive offer) that another pre-emptive offer was being presented. Additionally, the record-keeping and representation paperwork for the accepted transaction had errors and contradictions.
The seller’s agent was referred to discipline to consider the following allegations:
- Failure to put in writing any instructions or direction from the seller that there would be a delayed offer presentation date, and a failure to put in writing any instructions on how pre-emptive offers would be handled if received, contrary to sections 3 and 4 of the Code of Ethics.
- Failure to treat all interested buyers fairly and to promote the best interest of the seller client by not informing all interested buyers that pre-emptive offers had been received and were being presented to the seller, contrary to sections 3, 4, 38 and 39 of the Code of Ethics.
- Failure to properly document agreements relating to trading in real estate, contrary to sections 4 and 5 of the Code of Ethics.
Discipline
The listing agent was found in violation of the Code of Ethics sections 3, 4, 5, 38, and 39, ordered to pay a fine of $14,000, and required to take RECO’s MCE ethics courses.
Learning opportunity
For seller agents, fair handling of any offer process is essential, and should be approached with extreme care when multiple representation arises or when there is a delayed offer strategy. Seller agents are to take steps to inform all interested parties when the seller changes offer-handling instructions, including changes to the offer date and the handling of pre-emptive offers and updating any applicable real estate board or online selling-platform listing notes. This is done in the seller’s best interest and to be fair to those who have expressed interest in the property.
For more information about how to handle competing offers, manage a delayed offer process, and pre-emptive offers, read our Registrar’s Bulletins:
