Can language regarding payment of my brokerage fee be added to an offer?

QUESTION: I am representing a buyer who is very interested in making an offer on a “FSBO” property. I presented an Unrepresented Seller Disclosure and Fee Agreement (Form 150) to the owner, but she is unwilling to sign it because she doesn’t want to pay my firm a fee if my client purchases her property. I explained to my buyer that if the seller is unwilling to pay the fee, he will have to pay me himself if wants to buy the property. He still wants to make an offer and has requested that language be added to the Offer to Purchase and Contract that would make the seller responsible for paying my firm’s fee. Is that permissible?

ANSWER: Yes, but only if the buyer himself or his attorney drafts and physically adds the language regarding payment of your fee to the offer.

Real Estate Commission Rule 58A.0112(b) prohibits a broker acting as an agent in a real estate sales transaction from using a preprinted offer or sales contract form containing any provision: (i) concerning the payment of a commission or compensation to any broker or firm, or (ii) attempting to disclaim the liability of a broker for his or her representation in connection with the transaction. The Rule further prohibits a broker or anyone acting for or at the direction of the broker from inserting either of those provisions into a preprinted offer or sales contract form, even at the direction of a party or their attorney. Clearly, it would be impermissible for you to add language requiring the seller to pay your firm’s fee in any offer you assist your client in putting together, even if your client directs you to do so. It would likewise be impermissible for you to suggest wording that the client could add to the offer himself.

What is permissible is for the client himself to create and add language to the offer regarding payment of your firm’s fee. It would be preferable for an attorney to draft the language for him, but he can do it himself if he chooses to because a party to a transaction can alter, amend, delete, or add any provision in an offer or sales contract form. See subsection (c) of the Rule. You should advise your client that you can neither create nor add the requested wording to the offer, and you should also advise him to have an attorney draft the language regarding payment of your fee or at least get an attorney to review any wording he himself drafts. Hopefully, he will take your advice, but if not, so be it. Your advice should be in writing; an email or text message would suffice.