“How do I know the seller even saw my offer?” is the question my client asked me after finding out his offer was not accepted. This was not an easy question to answer especially since I suspect that we were dealing with an unethical agent.
Let me give you a little background.
First let me tell you in this real estate market a lot of offers are up against multiple offers. Knowing this I will always make sure when we do submit an offer we submit a complete offer package. This guarantees our offer is at least at the top of the heap.
Another thing I always do is to have a conversation with the listing agent. In this case, there were two agents listed, a husband and wife team out of Alpine. I spoke on the phone several times with the wife and she assured me our offer was going to be accepted. She even went on to explain they had another offer where they were representing the buyer1 but ours was the better offer of the two.
The next day when I did not receive the accepted offer back, I called again and this time she told me I should tell my client his offer was going to be accepted. But still, by the end of the day I had nothing. So now I decided to contact the husband side of this real estate team, who also happens to be the broker.
This time I was told a different story. He told me yes, there were two offers and they were going to present both to the seller and the seller was going to accept only one. He said the seller was not going to be sending out a multiple counter offer. This sounded very strange to me because what seller would not want to get the “highest and best” offer?
Not surprising I then received an email from the Listing (husband) agent stating the seller decided to accept the other offer. The one they (husband and wife team from Alpine) were double- ending.1
This is what brought on the question from my client “How do I know the seller even saw my offer?” This is always a valid question but even more so in this case where we were already told that our offer would be the accepted offer of the two. Interestingly I could not get the 2nd agent (wife) on the phone again. Hmmmm.
So why do I suspect that we were dealing with an unethical agent? Here are the reasons:
- Agent two (wife) already told me there were two offers and ours was the highest.
- Why would the seller NOT want to consider a counter offer to both? They may have gotten a higher offer (my client was certainly willing to go higher).
- The Listing Agent did not, and when asked would not provide a “Rejected” offer.
A “rejected” offer is the last page of the offer form (RPA – Residential Purchase Agreement) that provides two spaces to be initialed and time stamped. One for the Listing Agent to initial stating the date and time that the offer was presented, and the second for the seller to initial stating the date and time that the offer was rejected. We never received this page, and when asked for it the Listing Agent would not provide. He stated that he didn’t think it was a good idea because if we wanted to be in a “backup” position the seller should not “reject” it.
May I call “BULLS**T?”
As a Listing agent, we have a Fiduciary responsibility to our client. This means we put the clients' interest before our own. Which includes the following:
- ALL offers should be vetted by contacting the lender and any other parties to ensure the offer and the buyer are able to complete the transaction, this means there is no need to have “backup” offers.
- ALL offers should be presented to the seller. It is not up to the agent to decide which offer gets presented. And the way that we know that the offer was presented is by getting page 10 of the offer back stating the offer was rejected by the client.
Be careful my friends there are unethical agents out there. I took it a step further and asked my broker and contacted the California Assn of Realtors Legal Hotline and was told it is not mandatory that the Listing Agent send that back, but an ethical agent would do so when asked. At this point, I will be monitoring this transaction to see how it all plays out. I have absolutely NO problem turning in an unethical agent.
The answer to my clients’ question of “How do I know the seller even saw my offer?” is to ask for Pg. 10 of the offer back with both the agent and seller initials. This is the only way to know your offer was presented to the seller.
1Double-ending a transaction means one agent (or agent under the same broker’s license) is representing both the seller and the buyer. There is nothing unethical about this but it is still the Fiduciary responsibility of the agent to act in the best interest of the client. Most agents will then be paid the ENTIRE commission that would have been paid to two agents. This is another thing that I will not do, accept a full commission for representing both.