If on a listing, the Listing Agent has mentioned that they are taking offers on X date and time but Sellers have the right to take/review any preemptive offers.
This particular property had 5 showings, is Listing A gent not obligated to inform all 5 Realtors who have shown the property that they have received a pre-emptive offer and give every other agent a chance to bring an offer if they wish to compete with the preemptive offer or can the Sellers accept a pre-emptive offer silently?
I understand that everyone who had shown the property needs to be informed that Sellers have a pre-emptive offer and if the buyers wish to submit an offer, you have x time until the day or so. I know the market is crazy but communication shouldn’t be. Please correct me if I am wrong here. Thanks all.
The obligation under REBBA is to let others know who actually have registered Offers. No one else need be notified. Expressing an interest is insufficient, you actually have to get to the registration step before you are entitled to notification.
However, the above procedure requires the Seller’s consent. And, the Seller needs to be sufficiently informed.
Sometimes, the Listing agent has their own Offer and they want to speed things up by bringing an early Offer to their Seller without letting anyone else know. They want the double commission and they want to avoid competition. This end run can lead to some unfortunate results. This breach of fiduciary duties would lead to:
1) termination of the agency appointment,
2) the lack of entitlement to a commission and
3) the obligation to pay the Seller the differential amount.
The only real difficulty here is that the Seller got “duped and they didn’t know it” and they can’t prove that a better Offer was available. So, it’s very much a challenge, and most Sellers will not pursue it.
RECO has produced a couple of Bulletins dealing with this and attempting to encourage broad notification because essentially that is in the Seller’s best interests. In due course, hopefully TRESA will spell this out specifically.
Brian Madigan LL.B., Broker