Reviewed January 2017

FACTS:

The buyer wants to take possession of the property before the close of escrow. The seller, who does not occupy the premises, has no objection to this pre-possession.

ISSUE:

May the listing agent draft a pre-possession agreement to facilitate the parties’ desires?

ANSWER:

See Discussion.

DISCUSSION:

The listing agent may assist the parties in preparing a pre-possession agreement. However, the Commissioner’s Rules require that the listing agent recommend that the clients seek “appropriate counsel from insurance, legal, tax and accounting professionals regarding the risks of a pre-possession” agreement beforehand. See A.A.C. R4-28-1101(K). If the seller refuses to seek the advice of these professionals, the listing agent may want to decline the representation because of the inherent risky nature of a pre-possession agreement.