How should I fill out the Firm’s Fee section of the Exclusive Right to Sell Listing Agreement (Form 101)?
QUESTION: Agents in my office disagree on how to fill out the new Firm’s Fee section in Form 101. How should we fill out this section to address situations where the buyer is unrepresented or if the same agent represents the buyer and the seller in dual agency?
ANSWER: Section 7(b) of Form 101 should specify any and all fees your firm expects to be paid during the listing. Section 7(b) should not include any amounts of cooperative compensation that may be offered. This is a major change from previous versions of Form 101 that were designed to work under the old MLS rules. Instead, cooperative compensation offered by the seller or a listing firm, if any, should be separately specified and authorized in section 7(c).
The scenarios you describe may be addressed in section 7(b) of Form 101. The easiest way to address them would be to insert “See Attached” in the “Other Fee(s)” line in section 7(b) and attach a custom addendum that specifies what your firm will be paid if there is an unrepresented buyer or single agent dual agency.
Just as an example, a custom addendum could have language such as:
The provisions below are made a part of paragraph 7(b) of the attached agency agreement:
If the Property is sold to an unrepresented buyer, Firm’s Fee will be __________________.
If the Property is sold to a buyer represented by the listing agent in this agreement, Firm’s Fee will be __________________.
Since your firm is a party to the agency agreement, drafting a custom addendum is not the unauthorized practice of law. That said, having an attorney review any custom addendum is strongly recommended.
The above language is merely a suggestion. Firm’s can use whatever language they choose, so long as the fee paid by the seller is specific and articulated clearly. The blanks could include flat fees, percentages of the Property’s gross sales price, a mix of both, or other methods of calculating Firm’s Fee.
Firm policies vary widely on this topic, and this means that the Firm’s Fee and cooperative compensation sections of Form 101 will also widely vary. Listing agents should speak with their BICs to make sure these sections are filled out correctly, with special attention being paid to make sure that Firm’s Fee does not include any amounts of compensation that may be offered as cooperative compensation.
Release Date: 3/13/2025
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