Answer
No. Form 41 obligates buyer to pay the firm X%. Form 41C obligates seller to pay X% as a credit to buyer at closing, assuming buyer's lender will allow seller to credit X% to buyer. Nothing about the PSA obligates buyer or seller to direct payment from the transaction to the firm. However, buyer retains an obligation to pay X% to the firm based on the Form 41. If buyer's lender will allow buyer to pay the firm's compensation and will allow seller to credit X% to buyer at closing, then there is an easy solution. The firm should submit a Form 40A to escrow, instructing escrow to pay X% to the firm from buyer's column on the settlement statement. Buyer should sign the Form 40A indicating buyer's consent to the payment.
Where the firm will encounter a problem, potentially, is if the buyer's lender's loan restrictions will not allow buyer to pay buyer broker's compensation. Based on the current drafting, the only way that the firm is getting paid is from buyer's column of the settlement statement. If buyer's lender will not allow that and if the parties are willing to modify the PSA, then the solution is to amend the PSA to remove the Form 41C and to complete Form 21, paragraphs A and B to properly reflect seller's offer of compensation and agreement to pay the buyer brokerage.
If the buyer's lender will not allow buyer to pay the compensation and if the parties will not amend the PSA, then the firm is unlikely to be paid and buyer will receive a windfall. This is an excellent opportunity for DB to engage in a teaching moment. BB demonstrates a lack of knowledge regarding: the state law requirement to disclose seller's offer of compensation; proper drafting to obligate seller to pay BB's compensation through completion of paragraph 17B; and a lack of understanding regarding the "Addendum for Buyer Credit" check box which has no relevance if the blanks on paragraph 17A and 17B are not completed.
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