Reviewed January 2017
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.
May the listing agent draft a pre-possession agreement to facilitate the parties’ desires?
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.