Can I write an offer on my listing for a buyer when their agent is unavailable?

QUESTION: A buyer came to an open house I recently held on my listing. In response to my question, the buyer indicated that he had a buyer agent who was out of town for the weekend. After viewing the home, the buyer told me that he was very interested in the property and insisted on making an offer on it right away. I advised him that I represented the seller, not him, and he said he understood that. I then assisted him in filling out an offer using the Offer to Purchase and Contract, taking care not to give him any guidance on the terms of his offer, and his offer has been accepted by the seller. The buyer’s agent has now accused me of violating Article 16 of the REALTOR® Code of Ethics for dealing and negotiating with a party who had an exclusive relationship with another REALTOR®. Have I done anything unethical?

ANSWER: We don’t believe you did anything unethical. Standard of Practice 16-13 of the Code of Ethics provides guidance here. It states in relevant part that “[a]ll dealings…with buyer/tenants who are subject to an exclusive agreement shall be carried on with the client’s representative or broker, and not with the client, except with the consent of the client’s representative or broker or except where such dealings are initiated by the client.” Since, in our view, the dealings you had with the buyer were initiated by the buyer rather than you, we don’t believe you violated Article 16.

The National Association of REALTORS® publishes Case Interpretations (available on the NAR website by clicking here) which offer examples to help REALTORS® understand the ethical obligations created by the Code of Ethics. The facts of your situation are very similar to the situation described in Case Interpretation #16-13. In that hypothetical case, the hearing panel found that the listing agent had not violated Article 16, as interpreted by Standard of Practice 16-13. On the other hand, in a similar situation described in Case Interpretation #16-14, the hearing panel found that the listing agent had violated Article 16. The difference was that in Case Interpretation #16-14, after the buyer viewed the property, he indicated that he intended to discuss making an offer with his agent. In response, the listing agent stated that the property would likely sell quickly, and that although she couldn’t tell him what to do, she encouraged him to make an offer that day. The hearing panel concluded that the listing agent’s emphasis that the property might sell quickly, coupled with her offer to prepare a purchase contract on the buyer’s behalf, constituted an initiation of dealings on the property by the listing agent rather than the buyer. As a result, the listing agent in Case Interpretation #16-14 was found in violation of Article 16.

Your situation also raises potential procuring cause issues that are separate and apart from the ethical issues discussed above. The procuring cause issues will be explored in an upcoming Q&A.