Ethics Guy®: You can’t have it both ways
My dad used say when someone was sick, “You’ll either get better or you won’t.” When I asked him if I should propose, he said, “She’ll either say yes or she won’t.” He often reduced situations where there was some doubt into simple binary outcomes. I was reminded of those funny eye-rolling conversations with him (similar to the ones I now inflict on my own offspring) when the sheer inventiveness of members was on display, yet again.
In my last column, I lamented our fondness for clauses and forms—an almost universal panacea for any number of issues bedevilling members. There’s a place in our business for forms and clauses, assuming they’re properly explained and clients have given informed consent to the clever wording we’ve come up with on the standard form or in the contract.
It’s a bit like the COVID virus. We started off with the “standard” coronavirus.” Then the name changed to COVID-19. Then place names were attached to the virus. Then the virus lost the plot and started remaking itself into different forms. Soon, everyone was catching it. Now there are the UK, Brazilian, South African, and the bizarre-sounding “double mutant” virus from India. Heaven forbid! Who’s going to win: the double mutant or the vaccine? Dad would have said, “The virus will either win or it won’t.”
Getting back to our topic, namely mutating standard forms, let’s have a look at the latest variant.
Rules of Cooperation 4.02 describes what you must do if your seller wants you to delay offer presentations from the default “without delay”; for example, to “Thursday, May 13, at 5 p.m.”
We all know, or should know, that a seller’s written instructions override the rule’s default requirement. Rule 4.02 also specifies the form be used for the seller instructions, namely the Direction Regarding Presentation of Offers (DRPO) form. The relevant part of the form says:
4.02 Presentation of Offers (a) Unless otherwise instructed by the seller in a completed Direction Regarding Presentation of Offers form signed by the seller: (i) offers must be presented to the seller without delay; (ii) offers must be presented to the seller through the Listing Brokerage, but a Cooperating Brokerage submitting an offer shall have the right to be present during the presentation; and (iii) the Listing Brokerage shall without delay make the seller’s decision on the offer known to Cooperating Brokerages that had submitted offers. If requested by the Cooperating Brokerage such decision on the offer shall be provided in writing. Any direction by a seller to delay presentation of offers must also be noted in the REALTOR® Remarks. A copy of the seller’s completed Direction Regarding Presentation of Offers form shall be provided to the Cooperating Brokerage upon request. A Listing Brokerage who has posted the completed Direction Regarding Presentation of Offers form as an associated document would satisfy the Listing Brokerage’s obligation under this Section to provide a copy.
I hereby instruct my agent, Jane/John Doe, that I/we will not review offers until May 13, 2021, at 5 p.m. Note to seller(s): This is your written authorization to advise brokerages/licensees and clients/Unrepresented Parties that, unless otherwise instructed by you in writing, offers will only be dealt with as stated above. You acknowledge that the above-named Designated Agent has informed you of the pros and cons of these instructions and has advised you to obtain independent legal advice prior to authorizing these instructions.
It’s pretty clear what the seller is instructing their agent to do: Namely, “I don’t want to review any offers until May 13 at 5 p.m.” It doesn’t say in the standard form, “But if I change my mind, I’ll look at an earlier offer.”
Sellers can’t have it both ways. As dad would have said, “You’re either looking at offers on May 13, 2021, or you’re not. You can’t tell everyone what the rules are going to be and then change them after they’ve relied on them. Only governments get to do that. But some of our most creative colleagues are attempting to do just that by changing a perfectly good, straightforward form into a mutated variant, trying to enable someone to have it both ways. And like COVID-19, it’s spreading.
Folks, the MLS® department will not accept an altered DRPO form. If our very capable but sometimes fallible staff (or brokerage staff) don’t notice your mutant form when the listing is being input, I can guarantee you your colleagues will. And they’ll tell us. And then we’ll tell you, “Sorry, but your client can’t have it both ways. It’s either a delayed offer or it isn’t.”
Top tip: New BCREA form
Check out BCREA’s new standard form, the Buyer’s Acknowledgement of Information—Recommended Conditions.