7.21 Drafting and Negotiating Contracts

When preparing an offer to purchase on a purchase agreement form, or completing an addendum or counter-offer form, make sure that the:

All blank lines are filled or have a line placed through them in states that require a strikethrough.
Any inserted written language can be clearly understood by someone who is not familiar with the discussions you may have had with your client. Do not draft contractual language on your client’s behalf.
Review this document in light of all prior offer terms, addenda and/or counteroffers to make sure that there are no ambiguities or conflicts between the various terms.
Review the document to be sure it reflects your client’s wishes prior to asking them to sign.

Remember, as a listing agent, you must present all offers to the seller even if the property is in escrow, unless the seller has given you written instructions to the contrary. Upon receiving the offer, review it thoroughly for completeness, accuracy, and clarity. Pay close attention to time limits set out in the offer, ESPECIALLY the time within which the seller must respond. Make an appointment as soon as possible to present the offer.
As with all contracts, you must obtain all parties’ signatures. If a party signs on behalf of another, you must have evidence of that person’s authority to do so in writing. If you must present an offer missing a signature, you must disclose this fact to the seller or listing agent. Be sure to condition the offer on obtaining any missing signature(s).
If your clients receive a counter-offer, be sure the terms are clear and complete. Be sure to review it against the original offer to purchase and all previous counter-offers. Act expeditiously to present the counter-offer for consideration, signature, and timely delivery to the cooperating agent.
You may never represent two or more competing buyers offering to purchase the same property at the same time absent your Manager’s prior written consent.
It is Company policy that, if you have a listing and there are multiple offers, you may represent both buyer and seller in the contract negotiations (if permitted in that State and buyers and seller consent in writing). If not, you may be required to utilize a Designated Agency (if allowed in that State) and you and the Manager must choose to represent only the seller or the buyer during the pre-contract negotiations. A Manager or another salesperson will represent either the buyer or seller who is not represented by you during contract negotiations. Licensees are required to know and abide by the types of agencies that are allowed in their state.
Even if an Associate may be a qualified professional in the financial or legal fields, all Associates are strictly prohibited from giving any tax or legal advice or legal opinions. If questions of a legal or tax nature arise, the Associate should advise the client to consult with his or her own tax advisors or legal consultants.

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