A buyer’s agent reached out to me recently with a situation that is happening in markets across the country — and most agents don’t realize they have both the right and the obligation to push back.
Here’s the scenario: before our buyer’s agent — we’ll call her Susan — could present her offer, the listing agent [we’ll call her Betty] informed Susan she was required to sign a specific compensation agreement, that Betty preferred to use, as a condition of cooperation. Then came Betty’s second demand: “Produce your buyer agency agreement. Show me what you signed with your client.”
When Susan declined, Betty chided Susan, saying she hadn’t been properly trained.
However, what Betty the listing agent did isn’t just professionally overreaching, it may constitute a violation of federal antitrust law, the NAR Code of Ethics and in many states, state license law. The truth is, Betty is the one who hadn’t been properly trained.
Let’s take a look at the details.
One brokerage cannot dictate forms to another and federal law agrees
Listing agents do not have authority over the internal documentation practices of a cooperating brokerage, period, end of story. This is not a policy preference, it’s a legal boundary, enforced at the federal level.
Let’s start with NAR’s own settlement guidance, which is explicit: “NAR will not create rules that mandate listing agents to set compensation for buyer brokers.” The settlement’s two operative requirements are that a written buyer representation agreement must exist before touring homes, and that compensation cannot be advertised on the MLS. Neither provision gives a listing agent authority over which forms a cooperating brokerage uses internally. A listing agreement cannot fill that gap as it governs the seller–listing broker relationship only and cannot impose any kind of documentation obligations on a competing firm that is not a party to it.
But wait, there’s more. The more serious dimension to our scenario is federal. 15 U.S.C. § 1 of the Sherman Antitrust Act prohibits every contract or arrangement that would act in restraint of trade. A specific application of this is the tying arrangement — conditioning access to one product or service on agreement to use a different, specific product or service. When a listing agent says, “you must sign my preferred form or you cannot work this transaction,” she is conditioning access to that listing on a competing brokerage’s compliance with her chosen documentation.
The FTC describes tying arrangements as among those most harmful to fair competition. Each real estate company has the legal right to conduct its own business independently. One brokerage cannot dictate the internal practices of another. That principle has federal teeth and, in our scenario, Betty would land in some very hot water with her attempts to impose her own forms on Susan.
Then, there is the direct harm to Betty’s own seller. Every form barrier placed in front of a cooperating agent is a barrier between that seller and a qualified buyer. If Betty’s seller understood that their agent was inventing requirements — with no basis in law or policy — that made their home harder to sell to Susan’s buyers, they would rightly question whether Betty was honoring her duty of loyalty. The answer, under any reasonable reading of a listing agent’s obligations, is an emphatic no.
Demanding the buyer agency agreement is a separate violation entirely
When Betty demanded that a buyer’s agent produce her buyer representation agreement, she is not asking for a routine transaction document. She is asking for a confidential fiduciary agreement between Susan, a licensed professional, and the person they represent. That document is not for their eyes.
In every state, a buyer’s agent operates in a fiduciary relationship with their client. NAR’s own framework identifies confidentiality as a core fiduciary duty — the obligation to protect any information that could weaken the client’s bargaining position. A buyer representation agreement contains exactly that: the scope of representation, the compensation terms the buyer agreed to, and the fee structure governing the relationship. Handing Susan’s agreement with her buyer to the opposing party’s agent without the buyer’s knowledge and consent is a potential breach of fiduciary duty and, in many states, a violation of license law.
Consider the legal parallel for a minute. A plaintiff’s attorney does not demand the defense attorney’s engagement letter — the document defining the client relationship, scope of services, and fees. That document is confidential and protected. Demanding it would violate bar rules governing professional conduct, and no court would entertain the request in a million years.
The buyer’s agency agreement is the functional equivalent of that engagement letter and Betty has no right to demand it. If Susan had produced it under pressure, she may be exposing herself to a license complaint for breaching her statutory duty of confidentiality to her own client. Betty created a trap: comply and violate your duty to your buyer, or refuse and face obstruction on the transaction. That is coercion dressed as policy.
The Code of Ethics issues are serious
Article 2 of the NAR Code of Ethics requires Realtors to avoid misrepresentation of pertinent facts relating to the transaction. The terms governing cooperation — what forms are required, what the settlement mandates, what a listing contract can obligate — are pertinent transaction facts. Stating to a cooperating agent that she must provide a specific form she is not obligated to provide is a potential Article 2 violation.
Article 12 requires honesty and truthfulness in all real estate communications. A listing agent who misrepresents NAR settlement requirements to justify demands she has no authority to make is not presenting a true picture of the transaction. That is an Article 12 concern.
Article 3 requires cooperation with other brokers. Placing form-use conditions or document-production demands on that cooperation — with no basis in law or policy — runs contrary to Article 3’s mandate. By making the listing harder for cooperating agents to access, she may also be breaching her duty of loyalty to her own seller client under Article 1.
The larger issue
What happened to this buyer’s agent is not isolated. Post-settlement confusion has created an opening for some agents to assert authority they simply do not have — and agents who don’t know their rights [or the laws] are the ones who pay the price. As NAR has stated clearly, “compensation continues to be negotiable and should always be negotiated between MLS Participants and the buyers with whom they work.” No listing agent gets a veto over how that negotiation is documented.
A listing agent’s authority runs from her seller to the market. It does not run sideways into another brokerage’s office, dictate which forms a cooperating agent must use, or extend to demanding a confidential fiduciary agreement between another agent and their client.
Your buyer representation agreement belongs to you and your buyer. One company’s preference does not supersede another company’s legal right to run its own business. When a listing agent forgets that, she is not protecting her seller — she is exposing herself.
Darryl Davis, CSP, has spoken to, trained, and coached more than 600,000 real estate professionals around the globe. He is a bestselling author for McGraw-Hill Publishing, and his book, How to Become a Power Agent in Real Estate, tops Amazon’s charts for most sold book to real estate agents.
This column does not necessarily reflect the opinion of HousingWire’s editorial department and its owners.
To contact the editor responsible for this piece: tracey@hwmedia.com
