Dear Forms Committee: What is the purpose of OREF 051 – Sellers Fee Agreement, and can it be used to represent a seller when there is one specific buyer and no marketing?

OREF 051 – Seller’s Fee Agreement was created to be used when an agent is working with a buyer who may be making an offer on an unlisted property and would like the seller to pay the agent’s commission. The “Guide to Using OREF Residential Library Forms” says a buyer’s broker can ask a FSBO seller to sign this form to protect the agent’s right to a commission if the agent’s client buys the property. The form states that it is to be used with sellers who the agent does not represent, so it should not be used in a situation where you would be representing the seller.

When you are representing the seller who will sell a property to a specific buyer, the appropriate procedure would be to prepare a listing contract from your local MLS, but include in the additional provisions a statement similar to “This is an off-market, one-party agreement and applies only to (insert buyer name). Seller’s agent will not market the property to the public, and will only enter the property into the MLS for comparable sale purposes, after a sale to this buyer closes escrow.”  If the listing contract is not clear about commission sharing, you may also want to clarify whether any commission noted in the contract is only for you or will be shared with the buyer’s agent. Following this procedure makes it clear to the seller that you do represent them and that they will only pay a commission if one specific buyer buys the property. Then you can assure the buyer’s agent it is okay to proceed with showing the property.

All comments and responses from OREF or its staff, managers, and volunteers are non-legal opinions made for general purposes. Each Forms subscriber must rely solely upon their Principal broker or personal legal counsel for specific advice and instruction. You and your client should independently confirm that the Form(s) you use are legally suitable for the purposes intended and that they are current with respect to all laws and regulations.