CA Seller Reveals is Licensed RE Agent as a 'Counteroffer'

Investor · Socal · Member since 2015 · 222 posts · 34 votes

Made an offer on a CA (Los Angeles County) commercial property and got verbal acceptance BUT the listing agent - who is also buyer's agent in this transaction, doublesiding it - is saying the Seller is now making a "Counteroffer" that Seller is a licensed real estate agent which must be signed. Not a disclosure, rider, etc apparently, but a 'Counteroffer' that seller is an agent.

Is this CalBRE-compliant? How so??

Just wondering why the listing didnt just state owner/seller is an agent from the get go, and moreso, just for future reference sake.

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Jay HinrichsBusiness Member

Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes

probably just missed putting it in the listing just realized it and is now cleaning it up.

I do this often when I hire brokers who forget to include that me the seller is licensed..

and i make them put it in a counter.. so we disclosure before we close.. not a major issue from my point of view just an oversight they are cleaning up in writing..

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Stanley Bronstein
Attorney, CPA, Broker & Author · Scottsdale, AZ · Member since 2018 · 532 posts · 488 votes
7y
As a licensed CA agent, the Seller probably has a duty to disclose that they are a licensed agent.
You didn't know they were an agent when you submitted your offer, so you didn't include it in your offer.
In their counteroffer, they are adding a disclosure into the agreement that they are an agent, as they are presumably required to do by the state of California.
While I don't know the whole circumstances, nor am I licensed in California, that seems fairly normal to me.
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Jonn Vidal
Bel Air, CA · Member since 2017 · 165 posts · 47 votes
7y
Interesting!
NAR/CAR ethics stipulate 'Seller is Agent' disclosure in writing on the MLS etc at time of listing because even if Seller is not the Listing Agent, licensed seller/owner may expect and/or receive compensation (ie, gift, referral fee, portion of listing agent's compensation, etc).
Thus licensed seller is inherently not strictly limited to being a principal in the transaction, so would have had to disclose seller is licensed agent.
Perhaps agent isn't a 'Realtor' thus privy to NAR/CAR codes and/or perhaps CA BRE allows disclosure after Buyer signs Offer (weird). Hope future lawsuits help set more precedent that prevents even mild predatory selling tactics. After all, why disclose a Principal's silent agency entitlements only *after* negotiating price, as a standalone 'Counteroffer'?
Hopefully more attorneys chime on the subject of a seller hearing offers as just a Principal, but then countering with a licensed Agent disclosure.
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Wayne Brooks
Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes
7y
Not sure When Cali requires disclosure.....here it is “before substantive negotiations”.....but aaa an informed buyer, why do you care?
I think the agent is a little incompetent, it’s not a counter offer, it would be a disclosure, or a correction/clarification even if it had to be added to the language of the contract.
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Neil G.
OP
Investor · Socal · Member since 2015 · 222 posts · 34 votes
7y
Originally posted by @Jonn Vidal:

Interesting!
NAR/CAR ethics stipulate 'Seller is Agent' disclosure in writing on the MLS etc at time of listing because even if Seller is not the Listing Agent, licensed seller/owner may expect and/or receive compensation (ie, gift, referral fee, portion of listing agent's compensation, etc).
Thus licensed seller is inherently not strictly limited to being a principal in the transaction, so would have had to disclose seller is licensed agent.

Yea but why 'change costumes' from principal to licensed agent as principal, and disclose only after all apparently other negotiations?
Worst yet, there's no telling what other 'Counteroffer' they may also make later but if anymore, we walk.
Maybe will ask this on a legal forum like ExpertLaw, Justia, etc.
Thanks guys! You're the best =D
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Mike CumbieBusiness Member
REALTOR® · Brockport, NY · Member since 2015 · 3k+ posts · 4k+ votes
7y
I think there is some stuff missing. Is the agent that owns it also the one actually selling it? I am unclear if your agent who made a verbal and then wrote up the contract is the one who actually owns it or is representing another agent. If so that raises a bunch of other questions. Many much worse than if they made a counter offer or not.
If the owner is simply some other guy who has their license (but is using an agent to keep things separate), made a verbal offer with your agent (and his own agent) and then looked at the offer you signed and said "It doesn't say anything about me being an agent, I better make sure they realize this before signing". Then MEH, there could be a hundred reasons from the verbiage never transferred across some internet site, to the listing agent forgetting to add it, to the guy having not done anything with his license in years and just remembered he has been paying the $50 every two years to renew it with the state, but hasn't belonged to the board in years. The listing agent could be new and never added it so he called him out on it when it was on paper.
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Stanley Bronstein
Attorney, CPA, Broker & Author · Scottsdale, AZ · Member since 2018 · 532 posts · 488 votes
7y
@Mike Cumbie hits it right on the head. I wouldn't let the disclosure issue be a hangup on this deal. I'd be more concerned about the business terms of the deal and the numbers.
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Neil G.
OP
Investor · Socal · Member since 2015 · 222 posts · 34 votes
7y
Property's Listing Agent is listed on their Brokerage site as Associate Broker
Seller/owner of property is listed on same Brokerage site as Licensed Agent.
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Jonn Vidal
Bel Air, CA · Member since 2017 · 165 posts · 47 votes
7y
Most MLS and brokerage firms have rules requiring all licensed parties (and sometimes relationships between them) be disclosed in the listing. Heck even Craiglist distinguishes principals from agents strictly.
Seems agent's broker listed it for him/her, which is standard with many brokers, as is disclosure on the MLS listing of all licensed parties whether seller, broker, and/or agent.
IF I didnt disclose on MLS that seller is licensed agent where that was the case, just because my supervising broker listed it directly instead, tis only a matter of time before BRE be investigating a complaint, so wouldn't risk it even if there's legal prose to get away doing so.
Nevertheless, focus on the sale and find out if it would be legal to do the same if you get licensed but have your licensed broker sell it for you without disclosure of your own license until offers made and subject to be countered.
Although... What if seller-agent found the buyer? When would they wait to disclose they are in fact, both the seller and buyer's agent?????
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Neil G.
OP
Investor · Socal · Member since 2015 · 222 posts · 34 votes
7y
Originally posted by @Jonn Vidal:

Although... What if seller-agent found the buyer? When would they wait to disclose they are in fact, both the seller and buyer's agent?????
OMG.. in such a very feasible scenario, would seller not reveal he is both the buyer's agent and the seller/owner himself.. until offers are written up and it shows for itself as the same name in both fields?!
Scandalous. Hence the disclosure codes and statutes set in place to prevent such akward scenarios.

Thanks again folks
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Russell BrazilBusiness Member
Moderator
Real Estate Agent · Washington, D.C. · Member since 2012 · 17k+ posts · 30k+ votes
7y
Nothing seems scandalous here to me. You are aware they are an agent. You choose to proceed or not based on the information.
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Jonn Vidal
Bel Air, CA · Member since 2017 · 165 posts · 47 votes
7y
Like the previous agent points out, even the buyers agent hearing and countering offers initially secretly on his own property - unbeknownst to client that agent is also principal - would not be scandalous in some agents eyes because before they accept the offer, they will 'counteroffer' their pokerface disclosure just like you've similarly witnessed firsthand.
Keeps Dept of Real Estate busy issuing misdemeanors, suspensions and such from time to time after investigating details of iffy transactions all the time.
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Karen MargraveBusiness Member
Moderator
Realtor, General Contractor, and Developer · Redding, CA · Member since 2009 · 7k+ posts · 4k+ votes
7y
@Neil G. The agent is acting as a dual agent, and needs to disclose who is paying him and how much, to all involved, and receive their approvals. He is no longer a buyers agent. If you want to be represented separately, the Broker should actually assign another agent to represent you in the transaction.
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Jonn Vidal
Bel Air, CA · Member since 2017 · 165 posts · 47 votes
7y
Karen is right on the money, I totally missed the Listing Agent is repping both sides in this transaction,thus has even fiduciary responsibility to both parties from the moment dual agency was established.
Appauled that agent(s) even here see nothing wrong with silently presenting offers to oneself - or in this instance an agent working for oneself - while simultaneously honoring fiduciary responsibility to the buyer too as buyers agent!
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Jay HinrichsBusiness Member
Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
7y
probably just missed putting it in the listing just realized it and is now cleaning it up.
I do this often when I hire brokers who forget to include that me the seller is licensed..
and i make them put it in a counter.. so we disclosure before we close.. not a major issue from my point of view just an oversight they are cleaning up in writing..
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Bryan ZuetelPro Member
Attorney · Orange County, CA · Member since 2017 · 242 posts · 99 votes
7y
@Neil G., the "verbal acceptance" is useless and unenforceable. The disclosure of licensee status is technically not a counteroffer, but the label is irrelevant. You don't have an enforceable oral contract for real estate.
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Jonn Vidal
Bel Air, CA · Member since 2017 · 165 posts · 47 votes
7y
Doesnt making Disclosure via Counteroffering a written offer from Buyer drawn up with Dual Agent that Seller (who is in turn, an Agent for Listing Broker) is Licensed Agent quite late, practically after negotiations rather than before?
So much for fiduciaries!
Obviously the argument is that you don't have to sign the counter unless you accept not having known the Seller is Listing Broker's Agent until having already drawn up your offer with Double Agent.
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Neil G.
OP
Investor · Socal · Member since 2015 · 222 posts · 34 votes
7y
That's the thing!
To reiterate, I submitted the (cash) offer with dual agent and the response was a verbal acceptance that the ONLY counteroffer is that Seller is a Licensed RE Agent.
So to update, I have since signed that counter without hesitation, as it does not irk me that seller is agent - even to their own listing broker - as it is in this case. I simply wanted to know if that is compliant with CA's RE bureau, for future reference.
Last message (txt) was from listing broker/dual agent that that Escrow was opened, and so I dropped off the 10K check to the Escrow company indicated in CAR form's Joint Escrow Instructions, which shares same exact address as Listing Broker, just a different suite letter, ie B in of A, and haven't heard back from dual agent since, but assume once contract is executed, brokers move onto their next deals and become 'scarce'.
Anyways I had asked for 4wks close then 3wks close but broker kept 2wks close on the offer as its cash so let's see if we actually do close on their preferred timeframe of 2wks which would be 2nd week of Nov; there are NO contingencies other than Title clearing so I see no reason why the heck not, yet remains to be seen!
Thx all..
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Neil G.
OP
Investor · Socal · Member since 2015 · 222 posts · 34 votes
7y
UPDATE: We ended up closing around 8wks instead of their requested 2wk, due to one of the 2 owners/sellers' power of attorney papers being from while he was on vacation overseas.
Only the front door keys were given, so we had to change the back door locks/keys.
2 weeks after closing, various agent were still walking around and into the property's rear where we were gardening, and showing us on their phones that the property was still listed for sale and 'Active' on c21.com by Agent-owner's listing broker.
Was wondering why they never updated it still yet - not pending, not in contract, not even sold after the sale til i complained to the broker people were walking in to inspect.
Wonder if there are fines for not updating listing status, and who imposes them - MLS, CalBRE, or?
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