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Attorney General Opinion 02-8
This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following question:
Where a broker has entered into a listing agreement with a seller, can the broker comply with the seller’s request that no offers less than the listing price shall be presented to the seller?
I.
The
And
Single-Party Brokers To Present All Written Offers To
Sellers With Whom They Have Entered Into A Listing Agreement.
The
Transaction and Single-Party Brokers statutes (“Act”), 59 O.S. 2001, §§ 858-351
through 858-363, became law in 2000. The Act expressly imposes on a broker the
duty to timely present all written offers to a seller with whom the broker has
entered into a listing agreement.
A transaction broker shall have the following duties and responsibilities:
. . . .
4. To exercise reasonable skill and care including:
a. timely presentation of all written offers and
counteroffers[.]
Subsection 858-354 applies to single-party brokers[2] as follows:
B. The single-party broker shall have the following duties and responsibilities:
. . . .
4. To exercise reasonable skill and care including:
a. timely presentation of all written offers and
counteroffers,
. . . .
g. obeying the specific directions of the party for
whom the single-party broker is performing services that are not contrary to applicable statutes and rules or contrary to the terms of a contract between the parties to the transaction.
The
language of these provisions is plain and their evident meaning must be
accepted – that all written offers shall be presented to the seller. See Mindemann v. Indep. Sch. Dist. No. 6,
771 P.2d 996, 1001 (
The Act
does not contain any statutory exceptions to its mandate that a broker shall
present all written offers to a seller with whom he or she has a listing
agreement. Exceptions to the mandate requiring brokers to present all written
offers to sellers cannot be read into the Act, where no such exceptions have
been expressed in the Act by the Legislature.
See In re Mid Am. Peterbilt,
593 P.2d 499, 502 (
II.
The
Act’s Requirement That A Single-Party Broker Shall
Obey
The Specific Directions Of A Seller With Whom He Or She
Has
A Listing Agreement Does Not Authorize A Single-Party Broker
To
Comply With A Seller’s Request That No Offers Less Than
The Listing Price Shall Be Presented To The Seller.
The
Act imposes an additional requirement on single-party brokers which is not
imposed on transaction brokers. The Act requires a single-party broker to obey
the specific directions of a seller for whom the single-party broker is
performing services “that are not contrary to applicable statutes
and rules or contrary to the terms of a contract between the parties to
the transaction.” 59 O.S. 2001, § 858-354(B)(4)(g) (emphasis added). A seller’s
directions to a single-party broker that no offers less than the listing price
shall be presented to the seller is contrary to the Act’s directive
(discussed in Section I above) requiring all written offers to be timely
presented to the seller.
Moreover,
in enacting Section 858-354(B)(4)(g), requiring a single-party broker to obey
the directions of the seller “that are not contrary to applicable statutes
and rules,” the Legislature
was presumably aware of the Oklahoma Real Estate Commission’s existing
administrative rule, declaring a broker’s failure to present a bona fide offer[3]
to the seller as “untrustworthy, improper, fraudulent, or dishonest
dealing[s].” OAC 605:
Because
a single-party broker is not required to obey directions from a seller that are
“contrary
to applicable statutes and rules,” and because a seller’s request that
a single-party broker should not present below-listing-price offers to the
seller is contrary to provisions of the Act and the Oklahoma Real Estate
Commission’s administrative rules, which require all bona fide offers
to be presented to the seller, a single-party broker cannot comply with a
seller’s request not to present below-listing-price offers. Presumably,
prohibiting a single-party broker from agreeing not to present
below-listing-price offers to the seller prevents any possibility that a
single-party broker might exert influence (undue or otherwise) on a seller not
to consider below-listing-price offers.
It is, therefore, the official Opinion of
the Attorney General that:
Where a broker enters into a listing
agreement with a seller, the broker cannot comply with the seller’s request not
to present offers which are less than the seller’s listing price without
violating the provisions of the Transaction and Single-Party Brokers statutes
and the Oklahoma Real Estate Commission’s administrative rules, which require a
broker to present all bona fide offers to the seller. 59 O.S. 2001, §§ 858-353(4)(a), 858-354(B)(4)(a);
OAC 605:10-17-4(10)-(11).
The Transaction and Single-Party Brokers
statutes’ requirement that a single-party broker shall obey the seller’s
directions which are not contrary to applicable statutes and administrative
rules (id. § 858-354(B)(4)(g)), does
not authorize a single-party broker to comply with a seller’s request not to
present offers less than the seller’s listing price because such a request by
the seller is contrary to provisions of the Transaction and Single-Party
Brokers statutes (id. §§
858-353(4)(a), 858-354(B)(4)(a)) and the
W. A. DREW EDMONDSON
Attorney General of
JANIS W. PRESLAR
Assistant Attorney General
E-4
1 “Transaction broker” is defined by the Act as “a broker who provides services by assisting a party in a transaction without being an advocate for the benefit of that party.” 59 O.S. 2001, § 858-351(5).