I have received a number of calls recently about deals where the buyer comes in unrepresented, and wants to go through the transaction without their own broker. They typically do this to save money, thinking that they will be able to have the selling side commission credited back to them. With that in mind, there are a number of things that I want you to be aware of.

1. ? ? First, please understand that you have no obligation to discount or credit part of your commission to an unrepresented buyer. As you know, you have a listing agreement with the seller which says that you will be paid 6%. The only agreement you have to share that commission is through the MLS, with a cooperating broker. As a result, if the buyer is unrepresented, there is no cooperating broker and you have no obligation to share your commission with anyone. Instead, you can keep the whole thing. In truth, even if a buyer is “representing himself,” you will end up doing significantly more work so keeping the entire commission is justified.

2. ? ? Next, if you are involved in a deal of this nature, you need to make sure your paperwork is correct. As you know, without an agent helping them, the buyer will invariably look to you for assistance. As a result, to get the deal closed, and help your seller, you may need to do more for and with the buyer than is normal. So, to counteract any claim that this extra work created an agency, your documents need to be very clear that you only represent the seller. That starts, of course, with paragraph 2C of the RPA. In that section, make sure you put our name in the “Listing Agent” line only and check the box that says “the Seller exclusively.” With regard to the “Selling Agent” line, you should either leave it blank or put lines through it. Of course, you should never put our name in the “Selling Agent” line or check any box that says we represent the buyer or both the buyer and seller.

3. ? ? Next, please make sure your buyer signs the Buyer Non-Agency Agreement (CAR Form BNA). When completing that form, make sure not to check the box in paragraph 1D where you would identify another broker (since there isn’t one). Furthermore, be sure to check the second box in paragraph 3 which starts as follows: “Buyer is not at this time represented by a real estate licensee.” This form, in paragraph 2, makes it clear that the “Listing Broker does NOT represent Buyer and Listing Broker will NOT be Buyer’s Agent..” As a result, it makes it much more difficult for the buyer to claim differently later on in the deal.

4. ? ? Finally, be very careful what you do to help the buyer. You cannot give them advice. If they ask for any, remind them that you don’t represent them and recommend that they get a broker or talk to their attorney. You should also avoid giving them forms. First, to do so would be a violation of CAR’s copyright of those documents. They are for the use of CAR members only. Also, by telling them what forms to use, you are walking closer to that line of representation. So, do as little as possible while still trying to help get your seller’s deal closed.

As always, please contact your manager with any questions you may have and they will get the Legal Department involved if necessary.