DEPARTMENT OF PROFESSIONAL & FINANCIAL REGULATION

Original March 2003 (Amended May 2007 & June 2014) Page 1 of 4

OFFICE OF PROFESSIONAL AND OCCUPATIONAL REGULATION

MAINE REAL ESTATE COMMISSION

REAL ESTATE TRANSACTIONS

OFFERS/COUNTER OFFERS – GUIDELINES

Approved June 2014

Guiding Principles – Seller/Buyer Client

• Communicate early and often

When taking a listing or entering into a buyer representation

agreement the agent should explain to the client how offers and

counter offers are handled and the possibility of multiple offers.

• The agent advises – the client

decides

The decisions about how offers will be presented, negotiated and

ultimately accepted or rejected are made by the client – not the agent.

All offers must be communicated and agent must keep client

informed of stated interest in property.

• Offers and counter offers in

writing

Offers and counter offers should be in writing to ensure that the

terms, time frames and legal obligations of the parties are understood.

Written counter offers should include a specific time period for

acceptance. Withdrawal of a written offer or counter offer should be

made in writing.

• Terms of offers and counter

offers are confidential

The terms of offers and counter offers may not be disclosed by agent

without the prior written consent of both the seller and buyer.

Disclosing that a full price offer has been made is disclosing a term

and is a violation.

• The existence of an offer

is not confidential

Disclosing that an offer has been made or that an offer may be

received is not confidential information.

• Full-price offer does not

obligate the seller to accept the

offer

Listing property for sale is an invitation from the seller for buyers to

make offers. The seller is not obligated to sell the property even if a

buyer makes a full price, cash offer.

• No priority to offers

The first or highest offer made does not bind or otherwise limit the

seller to act upon that offer before considering any other offers.

• Agent communication

Agents should make reasonable efforts to keep cooperating brokers

informed, consistent with client’s instructions.

• Agents are not attorneys

Agents should advise clients to seek legal counsel from attorneys

regarding any questions about the legal status of an offer or contract.

Original March 2003 (Amended May 2007 & June 2014) Page 2 of 4

The Seller Client – An informed seller will be ready to make the right decision when an offer

or multiple offers are received.

When taking the listing:

• Discuss seller’s motivation for selling.

• Discuss impact of current market conditions, i.e., season, types of financing,

length of time on market.

• Review Guiding Principles (on page one).

• Explain that multiple offers may be received and that the client decides

whether to disclose the existence of other offers to other agents and/or

buyers.

• Confirm that decisions about how offers will be presented, negotiated and

ultimately accepted or withdrawn will be made by the seller – not the agent.

When the offer is

received:

• Discuss the terms of the offer(s) – if multiple offers, compare terms.

• Inform seller of any other interest in the property.



Potential of other offers



Scheduled showings



Recent showings that may require follow-up.

• Seller may instruct agent to keep the existence of offers or interest

confidential.

Seller’s options –

one offer:

• Accept, reject, counter, delay during time for acceptance, seek out other offer

or do nothing.

• Explain pluses and minuses of each option – including the potential of a

buyer withdrawing an offer during a delay.

Seller’s options –

multiple offers:

• Accept one offer.

• Reject all offers and encourage “best” offers.

• Counter one offer (may withdraw counter, in writing, prior to acceptance) –

do not inform other buyers.

• Delay during time for acceptance.

• Alert one or more buyers that they are in a multiple offer situation.

• Reject all offers.

• Do nothing.

• Consider the pluses and minuses of each option – delaying or inviting all

buyers to make their “best” offer may produce better offer(s) or may

discourage buyers who may withdraw.

Original March 2003 (Amended May 2007 & June 2014) Page 3 of 4

The Buyer Client – An informed buyer will be ready to make the right decision when making an offer.

When entering into a buyer

agent agreement:

• Discuss buyer’s motivation for purchasing.

• Discuss current market conditions, i.e. season, types of financing, average

length of time for properties on the market.

• Review Guiding Principles (on page one).

• Explain that multiple offers may be made on one property. In those

situations, only one offer may result in a sale and one (or more) buyer(s)

may be disappointed.

• Explain that buyer agent may have more than one client interested in the

same property. In those situations, buyer agent will notify all clients who

have expressed an interest in the property of any other interest and/or that

an offer has been made.

• Explain that seller is not obligated to acknowledge, counter or reject an

offer and may inform other buyers of existence of an offer or may do

nothing.

• Confirm that decisions about how offers will be negotiated and presented

or withdrawn will be made by the buyer – not the agent.

When the offer is made –

discuss with buyer the

possibility of multiple

offers:

• Initial offer may be the only opportunity to buy.

• Inform buyer of any other interest in property buyer agent is aware of,

even if from other clients of buyer agent who have expressed an interest in

the property. Remind buyer client that buyer agent will notify those other

clients that an offer has been made (terms and conditions remain

confidential).

• There is no requirement that the buyer be informed by the seller or listing

agent of the existence of other offers.

• Seller has the right to negotiate with only one buyer at a time and not

reveal this to other buyers.

• The agent may not disclose the terms of buyer’s offer but the existence of

the offer may be communicated to other buyers.

• Seller may accept an offer on terms other than the price.

• All buyers may be notified to present their “best” offer – buyer may choose

to:



make different offer



leave original offer



withdraw offer in writing if period for acceptance is current



do nothing.

Original March 2003 (Amended May 2007 & June 2014) Page 4 of 4

Offers and Counter Offers – FAQ’s (Customer Status)

A customer is a buyer or seller not represented by a real estate licensee in a transaction.

1. What should I expect when I make or receive an offer?

• Offers, counter offers or withdrawal of an offer should be in writing;

• Terms of offers and counter offers are confidential;

• The existence of an offer is not confidential;

• A full-price offer does not obligate seller to accept the offer;

• There is no priority to offers.

2. I’m ready to make an offer. Who can prepare the offer for me?

The listing agent (the seller’s agent) or another licensee can perform ministerial acts* for a buyer such as filling

in the blanks on the company’s purchase and sale agreement

3. Can I ask the listing agent (seller’s agent) to tell me if other offers have been submitted to the seller?

You can ask, but the listing agent is not required to answer your question. The listing agent has fiduciary duties

to the seller client; the seller client may authorize the agent to inform you of the existence of other offers.

4. Can I ask a licensee for advice about offers I make or receive?

You can ask, but licensee may not provide advice to or counsel a customer.

*”Ministerial acts” means those acts that a real estate brokerage agency performs for a person who is not a

client and that are informative or clerical in nature and do not rise to the level of active representation on

behalf of the person.