March 12th, 2018 at 1:58 pm
Answer: No. It is true that attorneys are exempt from the real estate licensing requirements. However, that exemption is limited to an attorney rendering legal services to a client (section 10133(a)(3) of the California Business & Professions Code). The law specifically prohibits the payment of compensation for performing real estate services to anyone other than a real estate broker (section 10138 of the California Business & Professions Code).
As an illustration, the attorney can provide consultation services to the buyer, and help the buyer draft, review, and negotiate the sales contract. Those are all legal services, and the attorney can be paid attorneys’ fees for rendering his legal services. Technically speaking, you can even pay for those attorneys’ fees on behalf of the buyer if you wanted to (but why would you want to). The law, however, prohibits you from paying the attorney a real estate commission. Plus you have no obligation to pay him under the MLS rules anyway, because he is not a participant of your MLS.
If the total commission is 6%, for example, and there’s no buyer’s broker, you can keep the entire 6% under the terms of your Residential Listing Agreement. Use a Buyer Non-Agency Agreement (BNA) to make it clear that you do not represent the buyer. Alternatively, with your manager’s permission, you can help the seller and buyer reach a sales agreement by allowing them to redirect the extra 3%. Let the buyer pay any attorneys’ fees.
-Thank you to Nicki Marcellino (La Jolla Branch Manager) for suggesting this week’s legal tip.
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