Disclosing information about offers received in a multiple offer situation

QUESTION: I represent both sellers and buyers in an extremely competitive market. It’s common for a listing agent to get many offers on a listing, and buyers and their clients are frequently very frustrated when they lose out multiple times on getting a property under contract. As a professional courtesy, I’d like to provide feedback to buyer agents who’ve made losing offers on my listings that could help them and their clients understand where their offers may have fallen short without actually disclosing any details of the other offers.

Can I disclose to buyer agents whose offers are not the winning offer information about the number of offers received at or above the list price, and the number of offers that contained escalation provisions, appraisal gap provisions, and/or inspection waiver provisions?

ANSWER: We salute you for your good intentions, but we’re afraid they may get you into hot water. Real Estate Commission Rule 58A.0115 prohibits brokers from disclosing the price or other material terms contained in a party’s offer to purchase to a competing party without authority from the offering party. In the situation you describe, the property has gone under contract, the competition arguably is over, and you arguably are not disclosing specific terms of the offers. However, unless the transaction has already closed, disclosing the information you propose to buyer agents whose clients did not win the competition could potentially be viewed as shopping for backup offers containing terms that the seller might find acceptable if the primary contract falls through. An attorney at the Real Estate Commission with whom we spoke about the matter agreed that your proposed disclosure could be problematic, and recommended against disclosing anything more than the fact that offers were received above the list price.