Am I Procuring Cause?

The following are questions that an Arbitration Hearing Panel would use when determining the outcome of an Arbitration Hearing.  When a dispute over commission arises these questions could help you determine if you are procuring cause.

1. Was an offer of compensation made through the MLS or otherwise?
2. Is the claimant a party to whom the listing broker’s offer of compensation was extended?
3. What was the nature of any buyer representation agreement? Was the agreement exclusive or non-exclusive? What capacity was the cooperating broker functioning in, e.g. agent, legally-recognized non-agent, other?
4. Were any of the brokers acting as subagents? As buyer brokers? In another legally recognized capacity?
5. How was the first introduction to the property that was sold/leased made?

• Did the buyer/tenant find that property on their own?
• Who first introduced the purchaser or tenant to that property?
• Was the introduction made to a different representative of the buyer/tenant?
• Was the “introduction’ merely a mention that the property was listed?
• Was the property introduced as an open house?
• What subsequent efforts were made by the broker after the open house?
• What property was first introduced?

1. When was the first introduction to the property that was sold/leased made?

• Was the introduction made when the buyer/tenant had a specific need for that type of property?
• Was the introduction instrumental in creating the desire to purchase/lease4?
• Did the buyer know about the property before the broker contacted him? Did he know it was for sale/lease?
• Were there previous dealings between the buyer and the seller?

1. What efforts subsequent to the first introduction to the property were made by the broker introducing the property that was sold or leased?
2. If more than one cooperating broker was involved, how and when did the second cooperating broker inter the transaction?
3. Did the broker who made the initial introduction to the property engage in conduct (or fail to take some action) which caused the purchaser or tenant to utilize the services of another broker? (estrangement)

• Were agency disclosures made? When?
• Was the potential for dual agency disclosed? When?

1. Did the broker who made the initial introduction to the property maintain contact with the purchaser or tenant, or could the broker’s inaction have reasonably been viewed by the buyer or tenant as a withdrawal from the transaction? (abandonment)
2. Was the entry of any cooperating broker into the transaction an intrusion into an existing relationship between the purchaser and another broker, or was it the result of abandonment or estrangement of the purchaser?
3. Did the buyer make the decision not buy independent of the broker’s effort/information?
4. Did the seller act in bad faith to deprive the broker of his commission?

• Was there bad faith evident from the fact that the difference between the original bid submitted and the final sales price equal the broker’s commission?
• Was there bad faith evident from the fact that a sale to a third party was a straw transaction (one in which a non-involved party posed as the buyer) which was designed to avoid paying commission?
• Did the seller freeze out the broker to avoid a commission dispute or to avoid paying a commission at all?

1. Did the buyer seek to freeze out the broker?

• Did the buyer seek another broker in order to get a lower price?
• Did the buyer express the desire not to deal with the broker and refuse to negotiate through him?
• Did the contract provide that no brokers or certain brokers had been involved?

1. Did the original introduction of the purchaser or tenant to the property start an uninterrupted series of events leading to the sale or lease, or was the series of events hindered or interrupted in any way?
2. If there was an interruption or break in the original series of events, how was it caused, and by whom?

• Did the seller change the listing agreement from an open listing to an exclusive listing agreement with another broker?
• Did the buyer terminate the relationship with the broker? Why?
• Was there interference in the series of events from any outside or intervening cause or party?
• Was there abandonment or estrangement?

1. Did the cooperating broker (or second cooperating broker) initiate a separate series of events, unrelated to and not dependent on any other broker’s efforts, which led to the successful transaction-that is, did the broker perform services which assisted the buyer in making his decision to purchase?

• Did the broker make preparations to show the property to the buyer?
• Did the broker make continued efforts after showing the property?
• Did the broker remove an impediment to the sale?
• Did the broker make a proposal upon which the final transaction was based?
• Did the broker motivate the buyer to purchase?

These questions may not lead to an answer in every situation, but they are factors that have been compiled in an attempt to help clarify who is procuring cause.

The preceding questions are from the NAR Code of Ethics and Arbitration Manual (2004 edition).