Andrew Wetzel's Musings

July 10, 2017

Sellers BEWARE the “Presentation of Offers”

Filed under: Uncategorized — awetzel @ 3:58 PM

Many properties offered in the multiple listing service (MLS) have a comment in the Agent section stating that any agent with an interested buyer should review the “Presentation of Offers” instructions uploaded in the document section only able to be accessed by an MLS member. The title seems innocuous enough but many perceive it quite differently. In fact, many question the intent of such a document and whether a seller has actually agreed to its use while understanding the potential issues many of these may cause.

I do not mean this as a blanket statement about all such documents but I do wonder what makes an agent provide the instructions I see and I wonder how the form is “sold” to the seller-client given that so many buyers and their agents genuinely seem bothered by the apparent intent. On the surface the instructions seem somewhat restrictive rather than facilitating the selling process. Let me add that I have looked at a number of these forms and tend to see similar wording although I am sure that there are many such documents that I have not seen so I cannot tell you what they say. Their use does seem to be increasing.

Most of these forms provide valuable information such as whom to contact with questions, their contact information, applicable license numbers and what a listing agent (and presumably their seller-client) is REQUIRING an offer to include. I wonder what happens with an offer that does not include all of the required documentation:  is it still presented to the seller or is the process paused pending receipt of the documents? Hmmm.

Buyer agents MUST assume that sellers are in agreement with the content of these forms even though there may be situations where the “process” does not seem to be in a seller’s best interest, such as the delaying/ withholding of a written offer. Some agents suggest that a listing agent should have to prove that a seller agreed to the provided requirements but there is no form for that nor is the specific nature of what an agent and their client agreed to anyone else’s business. Let me move on to what generally is seen as the more problematic “requirements”.

Most of the “Presentation of Offers” documents I have seen include the same basic statements. These include statements that offers received after a certain time of day will not be presented to the seller until the next day (some may state that offers received late Friday or over the weekend will not be presented until Monday), that any “due date” associated with satisfying a contingency that falls on a weekend or holiday  will automatically be extended to the next business day, that the seller is requiring a certain minimum number of days to respond to an offer and that settlements will only be scheduled Tuesday through Thursday. The specific language must be included in the Agreement of Sale to make it binding.

Many agents seem bothered by these “other” issues for two very specific reasons. First, the business of selling Real Estate is NOT a 9 to 5, Monday through Friday, 40-hour a week job although that would be nice. Buying and selling Real Estate are not so predictable. Obviously a seller has the right to enable a listing agent who wants to implement such actions but do they really understand how they are perceived by some buyers interested in buying what they are selling and by some agents representing these buyer-prospects? Most houses are not sold “in a vacuum”, meaning that there is competition. Do some requirements tend to drive buyers elsewhere?

The other difficulty is that what a listing agent suggests that their client wants MAY NOT meet the needs of a buyer. Perhaps they cannot wait! There is a reason that our standard forms (at least in PA) use a “fill-in-the-blank” format. Telling buyers how to fill in these blanks can be onerous and frustrating especially if it delays the “normal” negotiating process. I can only wonder if any seller has lost a potential sale as a result of allowing their listing agent to use such a document which at times seems self-serving. I see many expired and withdrawn listings using this and can only wonder if they had anything to do with why the property went unsold?

I have been practicing Real Estate since 1996 and have seen many changes over those years. Some endured (buyer agency has been a proven winner!) while others were “fads” (QR codes are relics!) that passed over time. It remains to be seen what happens with the use of “Presentation of Offers” forms but, at the very least, listing agents MUST thoroughly explain the intent, perceived benefits and potential ramifications to their clients. I have heard many complaints over the years about clients not being able to get in touch with their agents, agents not promptly returning calls (I guess that includes emails and texts!), clients wondering why they did not get offers or why their agent could not “close” those they had. While the agent-client relationship is a special one and one that certainly deserves confidentiality, we cannot forget that we are here to “promote and protect the interests” of our clients above all else. Unless we have their permission, preferably documented, that does not mean that we cannot do business on nights and weekends. Of course, this can be an all-consuming profession and we need to carve out time for ourselves but that should not conflict with doing the basic job.

Let’s see how this works out. Thus far I have yet to encounter a seller who believes they were ill-served by these agent-imposed requirements (the proliferation of these documents suggest that it is not a seller-driven mandate) but, should that happen, their use will undoubtedly receive tremendous scrutiny. I am hoping to make sure that the process works rather than having to address it later.

In the meantime, I can only hope that sellers make informed decisions and question whatever seems counter-intuitive as far as improving their chances to sell their properties. After all, until we get an offer, no one succeeds!


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