Background: In last week’s Legal Tip, we addressed a situation involving a buyer who submitted an offer asking the seller to pay a coop comp of 2.5%, which was more than the 2% provided for in the written buyer-broker agreement. The seller countered the coop comp down to 2%, and the buyer accepted. 

Yet, as it turned out, the seller was not obligated to pay anything to the buyer’s broker. The reason is a buyer is supposed to provide a “Buyer Compensation Affirmation” vouching for the fact that, at the time the offer is made, the buyer has a written buyer-broker agreement for no less than what the buyer is asking the seller to pay (see paragraph 3G(3) of C.A.R.’s Residential Purchase Agreement (RPA)). But in this situation, the buyer asked the seller to pay 2.5%, even though the buyer-broker agreement at the time the offer was made was only for 2%. It doesn’t matter that the seller later reduced the coop comp to 2% anyway. Because the “Buyer Compensation Affirmation” was untrue at the time the offer was made, the seller was not obligated to pay the buyer’s broker (see paragraph 18A(2) of the RPA).

Multiple Choice Question: Let’s say that, in the situation described above, a buyer’s broker discovers during escrow that the buyer should never have asked the seller to pay a 2.5% coop comp, given that the buyer-broker agreement was only for 2%. Is there a way to rectify the situation so that the buyer’s broker can still get paid 2% from the seller? Pick the best answer:

A. Yes.
B. No, because that would violate the NAR Settlement Agreement.
C. No, because that would violate the new California law requiring written buyer-broker agreements.
D. No, because that would violate the terms of the RPA.

Answer: Answer A is the correct answer, as explained below through a process of elimination.

Answer B is wrong. The NAR Settlement Agreement does not prevent the buyer’s broker in this situation from getting paid 2%. The NAR Settlement Agreement merely prohibits a buyer’s broker from receiving more than what’s provided for in the buyer-broker agreement. In this situation, the 2% that the buyer’s broker wants to receive does not exceed the 2% provided for in the buyer-broker agreement.

Answer C is wrong. The new California law requiring written buyer-broker agreements does not prevent the buyer’s broker in this situation from getting paid 2%. The new California law merely requires the written buyer-broker agreement to include the broker compensation. The buyer-broker agreement in this situation does include a 2% broker compensation.

Answer D is wrong, because the RPA is an agreement that can be revised. The RPA explicitly allows the buyer and seller to revise their agreement if “in writing Signed by Buyer and Seller” (see paragraph 31 of the RPA). They can agree that the seller will still pay 2%, even though the “Buyer Compensation Affirmation” was untrue at the time the offer was made.

It generally makes sense for a buyer to try to get the seller to agree to that revision. Otherwise, if the seller refuses to pay the buyer’s broker because the “Broker Compensation Affirmation” is untrue, the buyer may be obligated to pay the buyer’s broker under the terms of the written buyer-broker agreement.

Copyright© 2025 Shared Success Center, LLC (serving HomeServices of America companies). All rights reserved. Any unauthorized reproduction or use of this material is strictly prohibited. This information is believed to be accurate as of March 24, 2025. 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.