No. According to MLS rules, listing brokers must specify the compensation being offered to cooperating MLS participants. These offers are unconditional unilateral offers. The unilateral offer becomes an enforceable agreement between the brokers when a seller and a buyer execute a purchase contract and the cooperating broker is the procuring cause of that sale. Although the brokers can mutually agree to modify the cooperating compensation, neither broker can unilaterally change the compensation as stated in the MLS.

In addition, Standard of Practice 16-16 under Article 16 of the REALTOR® Code of Ethics states that a REALTOR® acting as a buyer’s representative may not use the terms of an offer to attempt to modify the listing broker’s offer of compensation or make the submission of an offer contingent on the listing broker agreeing to modify the compensation.

Yes. MLS policy and rules require that a listing broker specify on each listing what compensation is offered to other MLS participants for their services in the sale of that listing. Such offers must be unconditional except that entitlement to compensation is determined by the cooperating broker’s performance as the procuring cause of the sale. The offer you described appears to be conditional and therefore prohibited by the MLS policy and rules.

No. An offer of compensation in the MLS becomes enforceable when the cooperating broker is the procuring cause. No other agreement is necessary.

Some brokers find the Agreement Between Brokers for Residential Leases (TAR 2002) beneficial, since it specifies a time frame for payment, and covers compensation for lease renewals and sales. Still, an agreement between brokers is not required to enforce the offer of compensation specified in the MLS.

No. A listing broker’s offer of compensation in the MLS only applies to other MLS participants and cannot be enforced by a nonparticipant. You and the non-participating broker can negotiate other compensation using the Registration Agreement Between Brokers (TAR 2402) form.

NAR defines procuring cause as “the uninterrupted series of causal events which results in the successful transaction.” Commission conflicts must be evaluated based upon all the relevant facts and circumstances leading up to a sale. Rules of thumb and other predetermined ideas must be disregarded.

Although NAR provides an extensive list of specific factors to be considered in procuring cause disputes, most cases will turn to the following factors:

• Who first introduced the buyer to the property, and how was the introduction made?

• Was the series of events starting with the original introduction of the buyer to the property and ending with the sale hindered or interrupted in any way?

• If there was an interruption or break in the original series of events, how was it caused and by whom?

• Did the action or inaction of the original broker cause the buyer to seek the services of the second broker?

• Did the second broker unnecessarily intervene or intrude into an existing relationship between the buyer and the original broker?

The reason for the entry of the second broker into the transaction always should be examined closely. For example, if the original broker did not call the buyer for three weeks after a showing, the hearing panel might decide that he abandoned the buyer and paved the way for the entry of the second broker. If, on the other hand, the buyer looked at a home with the original broker and the next day wrote an offer through his cousin, the second broker, then the second broker may be seen to have intervened unnecessarily in the transaction.

You should discuss this issue with your client. The relocation company’s instruction is inappropriate. Your fiduciary responsibility to your client requires that you inform him of everything you know about the transaction unless it is otherwise privileged information you are not permitted to tell him. No such privilege exists relative to this instruction from the relocation company.

You may give an unlicensed person a non-cash gift worth $50 or less in exchange for a referral and not violate The Real Estate License Act (TRELA) or Texas Real Estate Commission rules. According to TRELA, if a referral is made with the expectation of receiving valuable consideration, the person making the referral must be licensed under the act. Under Section 535.20 of TREC rules, gifts of merchandise having a value of $50 or less do not count as valuable consideration.

A bank gift card that can be converted to cash or credit or any amount of cash or credit toward rent owed are not allowed to be used as gifts to an unlicensed person in exchange for a referral, according to TREC.

Yes. Section 535.131 of TREC rules permits a licensed Texas real estate broker to cooperate with and share commissions with brokers licensed in other states; however, all negotiations within Texas must be handled by Texas licensees.

No. Under the provisions of the Real Estate License Act, she must be licensed to receive valuable consideration for referring prospects for the purchase or sale of real estate. Since she is not licensed, you cannot share fees with her or pay her any kind of referral fee. However, TREC rules do not prohibit you from giving her a gift of merchandise having a value of no more than $50. This type of gift would not subject either of you to violations of the act or the commission’s rules.

Look at TAR 2401 Registration Agreement Between Broker and Owner. This form allows a broker to register the buyer with the seller, and if the buyer purchases the property, the seller will pay the broker. If the seller refuses to enter into an agreement under TAR 2401 (or a similar agreement), the broker should inform the buyer and seek further instructions. It may become necessary for the buyer to pay the broker directly, but seek certain concessions for the buyer in the contract.