Written Buyer Agreements – Frequent Questions Answered

QUESTION: I bet you all are getting tons of calls on the Legal Hotline lately! What are some of the most common questions related to the new NAR requirement that agents have a written buyer agreement with clients before touring a home?

ANSWER: We are indeed breaking new records with the volume of calls to the Legal Hotline. However, we are always happy to answer questions and help members avoid mistakes. Here are a few of the most common questions we are getting from agents related to written buyer agreements:

1.     Can I use the Exclusive Buyer Agency Agreement (Form 201) or the Non-Exclusive Buyer Agency Agreement (Form 203) to satisfy the new MLS rules? Yes, both of these forms have been revised to include the language required by the settlement. Under the new MLS rules, an agent “working with” a buyer must have a written buyer agreement prior to touring a property.

2.     Does the Zillow Touring Agreement comply with MLS Rules and the License Law in North Carolina? The Commission has reviewed and approved the recently-updated touring agreement from Zillow for compliance with their rules. The updated form also contains the terms and disclosures mandated by the settlement. The specific terms needed in any written buyer agreement are described in detail here, NAR’s “Written Buyer Agreements 101.” Any firm creating a custom form should consult with an attorney to make sure it is in compliance.

3.     Do I need a written buyer agreement to show my own listing? No, we discussed this topic here. Listing agents do not need written buyer agreements to show a home to an unrepresented buyer, because the listing agent is not “working with” the buyer. All a listing agent needs with the buyer is a WWREA indicating the buyer is unrepresented.

4.     Can I avoid the need for a written buyer agreement by acting as a seller subagent? Like a listing agent, seller subagents working solely for the seller do not need a signed written agreement with the buyer to tour a property. However, an agent wishing to be a seller subagent will first need to contact the listing agent to get authorization from the seller to act as a subagent. Seller Subagents will need to discuss agency with the prospective buyer, mark the unrepresented buyer section on the WWREA, and advise the buyers not to share any information with the agent that they would not want the sellers to know. The Commission has written an article on seller subagency compliance here.

5.     Does the written buyer agreement need to be an agency agreement? Yes, in North Carolina brokers may not undertake to provide any brokerage services without an agency agreement. For transactions prior to these new rules being implemented, agents were often working for a buyer under an oral agency agreement up until the time an offer was going to be submitted. Now that agents working with a buyer must have a written agreement pursuant to MLS rules, the written buyer agreement must constitute an agency agreement to comply with North Carolina law.

6.     Do I need a written buyer agreement to do a virtual tour for some prospective buyers? Yes, the NAR FAQs found here (see Question #62) note that both physical and virtual tours require a buyer agreement to be signed.

        Do I need a written buyer agreement to share a recorded tour that was advertised by the listing agent? No, according to NAR FAQ #62 referenced above, the need for a written buyer agency agreement is not triggered until the buyer agent enters the home. We do not believe the rule applies when an agent is simply sharing information already available online and the agent does not go to the subject property.

7.     Do I need to have a written buyer agreement to show a commercial property or vacant land? No, the NAR FAQs linked above note that a written buyer agreement is only needed when agents are touring a residential property (see Question #100). When selling commercial property or vacant land, there is no home to tour and the new requirement for a written buyer agreement does not apply.

Release Date: 8/15/2024