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October 17, 2017 • Stay Connected!
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QUESTION:  Is a WA real estate licensee able to write an offer on a property (not that agent's listing) for two different buyers? Does the agent need to disclose to both parties that she is writing another offer on the same property? Can the agent advise both parties that there are multiple offers and that the price they offer should be their highest and best--one that if they do not get their offer accepted, they will walk away feeling OK about not getting the home.



ANSWER:  When a non-listing broker writes an offer for a buyer, non-listing broker is buyer's agent and owes that buyer a duty of loyalty. According to the Agency Law, broker's duty of loyalty prohibits broker from taking any action that is adverse or detrimental to the buyer's interest in the transaction. If buyer's agent writes another offer, from a different buyer, that competes with buyer's offer, then buyer agent's action in writing that competing offer is undeniably adverse and detrimental to the original buyer's interest in the transaction. Buyer now has a competitor in the negotiation and the competitor was injected into the negotiations based on an offer that buyer's agent wrote. The Agency Law prohibits a buyer's agent from writing two competing offers for two competing buyers.
 
The buyer's agent can write an offer for a second buyer if the first buyer's offer is rejected, all negotiations between seller and first buyer cease, and first buyer indicates that buyer is no longer interested in pursuing purchase of seller's property. After that happens, broker may then represent and write an offer for a different buyer but by definition, that new buyer's offer will not be "competing" with first buyer's offer because first buyer will have abandoned all effort to purchase the property.
 
Broker is allowed to show the same property to multiple buyers. Broker's duty of loyalty does not trigger until one of those buyers signs an offer to purchase the property. If buyer agent finds herself in a situation where she represents more than one buyer, all of whom want to offer on seller's property, then buyer agent must refer competing buyers (all buyers after the first buyer who signs an offer) to another broker. The referral broker can be licensed to buyer agent's firm and buyer agent may collect a referral fee from the referral.
 
Also, as a matter of clarification, a broker who represents seller exclusively may write an offer for multiple competing buyers so long as seller's broker makes it clear to each buyer, that broker represents seller exclusively and buyer is without representation. However, if broker is a dual agent, broker cannot write an offer for buyers who will compete with the buyer she represents.
 
Finally, in explanation of the Agency Law Duty of Loyalty, it is understood that in a competitive seller's market, every buyer is likely to face competition in the offer and negotiation for seller's home. While there is nothing that prevents a buyer from facing competition, the Agency Law prohibits buyer's agent from being the broker who writes the offer for the competition. Certainly, it is understood that prohibiting buyer's agent from writing a competing offer will not prevent the competing offer from being written. But, it will preserve the buyer's agent's purity of representation for buyer.
 

 

The Legal Hotline Lawyer does not represent Washington REALTORS or its members. To browse through our database of past Q & A's, visit www.warealtor.org. Attorney Annie Fitzsimmons writes the Legal Hotline Question and Answer of the Week. Please submit questions to legalhotline@warealtor.org . Please tell us your NRDS number when you e-mail the Hotline with your question.


 

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Primary Mortgage Rates Survey
(updated every Thursday)  Source:  Freddie Mac
 
 October 12, 2017      30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  3.91%  3.21%  3.16%
 Fees & Points  0.5
 0.5
 0.4
 Margin  N/A  N/A  2.74



 October 5, 2017       30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  3.85%  3.15%  3.18%
 Fees & Points  0.5
 0.5
 0.4
 Margin  N/A  N/A  2.74



 September 28, 2017  30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  3.83%  3.13%  3.20%
 Fees & Points  0.6
 0.5
 0.5
 Margin  N/A  N/A  2.74



 September 21, 2017  30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  3.83%  3.13%  3.17%
 Fees & Points  0.5
 0.5
 0.4
 Margin  N/A  N/A  2.74



 September 14, 2017  30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  3.78%  3.08%  3.13%
 Fees & Points  0.5
 0.5
 0.4
 Margin  N/A  N/A  2.74





 
 
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