Fact Pattern: You are the listing agent. Your listing agreement just expired yesterday. Right before the listing expired, you submitted to the seller a list of prospective buyers to be protected under your 180-day safe harbor period. However, you forgot to add one more name to the list.

Multiple Choice Question: Can you still add that name to your list? Pick the best answer:

A. Yes, but only if your original list was on C.A.R.’s standard-form Notice of Prospective Buyers (NPB).
B. Yes, because you have 3 days after the listing expired to submit names of prospective buyers.
C. Yes, because the oversight was just an honest mistake.
D. No. 

Answer: As a little background, a safe harbor period is a certain timeframe after a listing expires or cancels, when the listing agent is still entitled to get paid the commission, if certain prospective buyers end up buying the property (see paragraph 3A(2) of C.A.R.’s Residential Listing Agreement).

Answer A is wrong. There’s nothing in the NPB that allows listing agents to add more names at a later day. Answer A is just my way of reminding everyone that you can use the NPB form to give sellers your list of prospective buyers. One good tip is, while you have the listing, keep a “working NPB form” at your desk as a reminder to keep adding new names that come up over the course of your listing period. That’s usually an easier way to create your list, rather than trying to pull all the names together when your listing expires.

Answer B is wrong. C.A.R.’s Residential Listing Agreement was revised many years ago to require listing agents to give their list of prospective buyers to their seller before the listing expires or cancels. Do not wait until after your listing expires or cancels to give the seller your list of names.

Answer C is most probably wrong. The law does, in certain instances, cut people a break for making an honest mistake. However, in this particular situation, we will very likely be viewed as the professional individuals going after an unsophisticated member of the public. It is unlikely that we would be able to successfully argue that we made an honest mistake.

Answer D is the correct answer. Of course, you can always just ask the seller if it would be okay for you to add another name that you inadvertently forgot. Or perhaps you can ask if you can replace one of the names you already gave the seller with the one you forgot. If the seller agrees, make sure you get that agreement in writing and signed by the seller.

-A big thank you to Andrew Manning and Vito Sanfilippo (Sherman Oaks Office) for suggesting this week’s legal tip!

Copyright© 2024 Berkshire Hathaway HomeServices California Properties (BHHSCP). All rights reserved. Any unauthorized reproduction or use of this material is strictly prohibited. This information is believed to be accurate as of June 10, 2024. It is not intended as a substitute for legal advice in individual situations, and is not intended to nor does it create a standard of care for real estate professionals. Written by Stella Ling, Esq.