Presenting Old Version of Offer to Purchase and Contract

Dear Forms Guy: I just got an offer on one of my listings. The buyer agent submitted the offer on an old version of the Offer to Purchase and Contract form. I told the agent that I  wouldn’t present the offer to my seller unless they used the latest version of the form. I am afraid that if we use the old version to create a contract, the agents might get into trouble and there could also be a question about whether the contract is legal. Did I handle the situation correctly? Sincerely, Dixie

Dear Dixie: I suggest you change your tune and present the offer to your seller right away. Real Estate Commission rule 58A.0106 requires brokers to “… immediately, but in no event  later than five days from the date of execution, deliver to the parties thereto copies of any required written agency agreement, contract, offer, lease, or option affecting real property.”  Standard of Practice 1-6 of the REALTOR® Code of Ethics provides that “REALTORS® hall submit offers and counter-offers objectively and as quickly as possible.” Your failure to  promptly deliver the offer to your seller thus could constitute a violation of the real estate license law and the REALTOR® Code of Ethics. I’m not just whistling, Dixie! Sincerely, Forms  Guy

Dixie: But doesn’t the NC REALTORS® forms’ policies prohibit members from using an old version of a form 60 days after it is changed?

Forms Guy: Yes, it does. A state association member who creates an offer using an old version of the Offer to Purchase and Contract might be in violation of our forms policy, but that  doesn’t have any bearing on the legal and ethical duty of the agent to whom the offer is submitted to present it right away to their client.

Dixie: So I wouldn’t get in any trouble with NC REALTORS® if I presented the offer to my seller?

Forms Guy: No, Dixie. In fact, as I stated above, the only way you’ll get in trouble is if you don’t present the offer to your seller. You should present the offer to your client, advise them  that there is a more current version of the form available and that if they are interested in pursuing the offer, you would recommend they consider countering on the most current version of the form.

Dixie: But suppose they want to accept it on the old version because they’re afraid they’ll scare the buyer off if they counter?

Forms Guy: Heck, Dixie, a buyer and seller may contract to buy and sell real property on a napkin if they want to, so if the seller wants to accept the offer on an old version of the Offer  to Purchase, that is the seller’s choice. Of course, depending on what the differences are in the content of the form, there may be some differences in the rights and obligations of the  buyer and seller, but there wouldn’t be any question about the legal enforceability of the resulting contract. I suppose it would be prudent for the agent in such a situation to suggest to  his or her client that they should check with their attorney if they have any questions about whether the older version of the form adequately provides for their legal needs.

Dixie: OK, I think I know what I need to do with my seller. Thanks, Forms Guy.

Forms Guy: You’re welcome, Dixie.