April 12th, 2021 at 2:59 pm
Multiple Choice Question: Can you agree to accept the $5,000 bonus? Pick the best answer:
A. Yes.
B. Yes, as long as you inform the seller about the bonus.
C. No, because it would be illegal to accept the bonus.
D. No, because it would be an MLS violation to accept the bonus.
Answer: The correct answer is B. By virtue of your real estate license, brokers and agents are legally authorized to receive compensation for helping others buy or sell real property. That’s precisely what agents do for a living. However, listing agents cannot claim or take any secret or undisclosed compensation without informing our seller. You can even offer to share the bonus with the seller.
Based on the above explanation, answers A and C are both wrong.
As for Answer D, the MLS rules do not disallow a bonus under these circumstances. The MLS rules do prohibit listing agents from modifying their MLS offer of compensation after they receive an offer to purchase (or know that the buyer’s agent has a signed offer), absent the “buyer broker’s consent” (California Model MLS Rule 7.16). In practice, however, listing agents should never initiate any attempt to modify their MLS offer of compensation after they receive an offer, because proving the “buyer broker’s consent” can be tricky. After all, buyers’ brokers can indicate their “consent” at the time of such modification, but after close of escrow, they can nevertheless try to claim in an MLS arbitration matter that they were forced to “consent” under duress, given how badly their buyers wanted to buy the property.
But this situation is entirely different. Under this particular fact pattern, you have not yet received any offer to purchase (nor do you know whether the buyer’s agent has a signed offer). Additionally, the unsolicited email you received from this buyer’s agent is written proof confirming that you did not initiate any attempt to get a bonus or otherwise modify your MLS offer of compensation.
-Thank you to Judy Bernstein (Encino Office) for suggesting this week’s legal tip!
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