FACTS:                 

A brokerage has a “listing” that charges a flat fee to the sellers to place the property on the Multiple Listing Service (“MLS”). The sellers agree to pay the MLS-offered co-broke to an agent that procures a buyer. The MLS states all offers should be presented to the sellers, and that the brokerage should not be listed on page 10 of the Residential Resale Real Estate Purchase Contract (“Contract”).

ISSUE:                  

Should the listing broker be listed on page 10, section 9a of the Contract, when the buyer’s agent presents an offer to a seller listed in the MLS under a flat fee listing agreement?

ANSWER:                           

See discussion.

DISCUSSION:    

Although a broker can limit the services the broker provides to a client, a broker cannot limit the regulatory authority of the Arizona Department of Real Estate. Therefore, a “limited service broker” is required to comply with all real estate statutes and rules, including A.R.S.§ 32-2151.01(A), which requires that “[e]ach licensed employing broker shall keep records of all real estate…transactions handled by or through the broker.” Thus, the listing broker should be identified on page 10 of the Contract, and a copy of all transaction documents should be retained by the listing broker.

In regard to the buyer’s broker who is instructed to submit an offer directly to the seller, A.A.C. R4-28-1102, states: “[e]xcept for owner listed properties, negotiations shall be conducted exclusively through the principal’s broker or the broker’s representative unless: 1. [t]he principal waives this requirement in writing, and 2. [n]o licensed representative of the broker is available for 24 hours.”

The sellers and the limited service broker can satisfy this Rule by providing a written waiver (preferably in the listing agreement) indicating that the buyer’s agent should present/negotiate the buyer’s offer directly with the seller.