Hot Off the Press: Disclosures for Active Listing Agreements and Current Buyer Agreements (prior to August 15)

Compensation Disclosure Statement (CDS-1 ). This disclosure should be given to the Buyer/Seller/Owner if the existing listing agreement or buyer agreement does not contain this disclosure. (Click here for preview)

Required Written Buyer Agreements:

All MLS Participants (Brokers) and Subscribers (Agents) working with buyers will be required to have written buyer agreements prior to touring properties.

Written Buyer Agreements 101:

Written buyer agreements benefit consumers because they clearly and transparently outline the services an MLS Participant will provide and how they will be compensated.

Beginning August 15, 2024, an MLS Participant “working with” a buyer will be required to enter into a written agreement with the buyer prior to touring a home, including both in-person and live virtual tours. This resource provides information about what provisions must be included in the written agreement pursuant to the NAR settlement as well as other provisions that, while not required by the settlement, MLS Participants may consider addressing with their clients.

As you develop or refresh your agreement forms, keep in mind:

• Agreement forms should account for the choice and optionality consumers and real estate professionals have when negotiating the terms of their relationship permissible under state law.
• Agreement forms should give the real estate professional and consumer the ability to efficiently memorialize the relationship based on the transparent and clear conversation they have when deciding to work together.

What is Required in the Written Buyer Agreement?

1. A specific and conspicuous disclosure of the amount or rate of compensation the REALTOR will receive or how this amount will be determined, to the extent that the REALTOR will receive compensation from any source.
2. The amount of compensation in any manner that is objectively ascertainable and not open-ended.
3. A term that prohibits the REALTOR from receiving compensation for brokerage services from any source that exceeds the amount or rate agreed to in the agreement with the buyer and;
4. a conspicuous statement that broker fees and commissions are not set by law and are fully negotiable.

Notes: a written buyer agreement cannot have a commission that is "buyer broker compensation shall be whatever amount the seller is offering to the buyer" or "between X and Y percent".

Importantly, NAR Policy will not dictate the amount of compensation agreed between buyers and buyer brokers (IE $0, X flat fee, X percent, X hourly rate).

Who is Entitled to See the Written Buyer Agreement?

The MLS will be responsible for enforcing the rule regarding written buyer agreements, much like the enforcement of listing agreements.

If it is reported that an agent is working with a buyer without a written buyer agreement, the MLS staff will contact the agent to request a copy of the agreement. 

What Does it Mean to Tour a Home?

Touring a home means when the buyer and agent working with the buyer enter the house. This includes when the agent working with the buyer enters the home to provide alive, virtual tour to a buyer not physically present.

A "home" means a residential property consisting of not less than nor more than four residential dwelling units.

Other Property Types:

When working with clients and customers in all other property types (Rental, Land, Income, Commercial), pursuant to the settlement, you are not required to have a written buyer agreement.

Note: Compensation is being removed for all property types in Space Coast MLS, you will want to make sure you use an agreement that stipulates in writing how much you as a REALTOR will be getting paid, and by whom, in the closing of the real estate transaction.

What about Open Houses?

When an agent is performing work on behalf of the seller, such as hosting an open house, you are not working with the buyer, therefore a written buyer agreement would not be required.

However, when a relationship is established with the buyer and work is being performed on behalf of a buyer, then you would be required to have a written buyer agreement in place.

Code of Ethics: Standard of Practice 3.10:

What if the listing agent refuses to show property if the buyer's broker doesn't show them the written buyer agreement?

Participants have the duty to cooperate which is to share information on listed property and to make property available to other brokers for showing to prospective purchasers and tenants when it is in the best interest of their clients.

Standard of Practice 3-10 The duty to cooperate established in Article 3 relates to the obligation to share information on listed property, and to make property available to other brokers for showing to prospective purchasers/tenants when it is in the best interests of sellers/ landlords.

Florida Realtors Forms to Consider Using:

• Exclusive Buyer Brokerage Agreement, Transaction Broker (Click here to preview) (Click here for redline version)
• Modification to Exclusive Buyer Broker Agreement/Showing Agreement (MEBBSA-1) (Click here to preview)
• Property Pre-Touring Agreement (PPTA-1) (Click here to preview)
• Revised Showing Agreement (SA-4) (Click here to preview) (Click here for redline version)

• Exclusive Buyer Brokerage Agreement, Consent to Transition to Transaction Broker (Click here to preview) (Click here for redline version)
• Exclusive Buyer Brokerage Agreement, No Brokerage Relationship (Click here to preview) (Click here for redline version)
• Exclusive Buyer Brokerage Agreement, Single Agent (Click here to preview) (Click here for redline version)

Fines for Non-Compliance:

If it is reported that an agent is working with a buyer without a written buyer agreement, the MLS staff will contact the agent to request a copy of the agreement which must be provided within 1 business day. If the agent cannot produce the agreement, the following penalties will apply:

• $250 if not provided within 1 business day*
• $500 (additional) if the written agreement is not provided within 5 business days*

The MLS will not maintain copies of written buyer agreements or information therein.

*Required attendance at a Space Coast MLS sponsored course on Rules and Regulations Violation Notices: Violation notices are always sent to the agent and the broker of record.