LEGAL
Magical Myths
of Procuring Cause
By Kristy L. Harrington, Esq.
2019 Real Estate Legal Summit Presenter
“What Would You Do?”
REALTORS® know that “procuring cause” means ‘she who
begins an uninterrupted flow of events that leads to a successful
transaction.’ But what constitutes an “interruption”
in a transaction? And when did the actual flow of events
begin (or end)?
Procuring cause is determined on a case-bycase
basis, with a number of factors considered.
There is no easy trick to
determining who began an
lead to a successful transaction
There’s no hard and fast rule; however, there
are several common misconceptions that hang
REALTORS® up.
Say the buyer interacted with you, but then
another REALTOR® wrote an off er that ultimately
saw him to the closing table. You believe YOU are the procuring
cause because of one of the myths below. In fact, you’re so sure that
you see no point in notifying the listing off ice before the closing.
(And FYI, politely notifying the listing off ice before the closing is very
diff erent from threatening to kill the transaction.) Your certainty also
makes you believe it’s pointless to mediate or negotiate with the
listing off ice or the REALTOR® who received the commission. You
figure you’ll be vindicated at arbitration. But you cannot simply be
“sure” you’re the procuring cause just because of any of the following
situations:
1. You showed the property. Decades ago, the “Threshold Rule” was
more of a reliable guidepost. Today, showing the property is one
on a long list of items to contemplate. Just because you showed
it does not always mean the buyer was interested or serious
about that property at that time. Thus, it’s important to consider
such factors as the passage of time before another REALTOR®
wrote the off er, as well as what other interactions occurred between
you and the buyer as to that property besides the showing
and answering basic questions.
2. You were a single agent. There is no correlation between your
agency relationship and whether you’re procuring cause. You
could become a single agent for someone who approached
you before OR aft er another REALTOR® spent time with them on
the same house, and it will not matter when it comes time to
disburse the commission. It’s all about who began that uninterrupted
flow of events.
3. You had an Exclusive Buyer Brokerage Agreement. Exclusive
contract with the buyer notwithstanding, this does not mean the
buyer did not (a) get the flow of events started with a diff erent
REALTOR®, or (b) breach your contract by working with another
REALTOR®. (Could the other REALTOR® be guilty of an Article 16
ethics violation for working with your exclusively contracted
buyer? Possibly, but that’s a diff erent article.)
4. You wrote the first off er. If you spent considerable time with the
buyer and assisted in various ways and then wrote the first off er,
perhaps you did begin the uninterrupted flow of events. On the
other hand, why did the off er not get accepted and/or negotiations
fall apart? Why did the buyer go to another REALTOR®? How
much time passed before the next REALTOR® wrote a new off er?
How similar were the terms of the new off er? Questions including
these must be reviewed before anyone can conclude that no actual
break allowed a new REALTOR® to begin a whole new series
of events.
5. The buyer approached you to write the
off er/contract. If a buyer comes to you with
a particular set of contract terms they want
you to present on their behalf, it’s likely they
did not just locate that property and come
up with those terms on their own. If they
have also already worked out a way for you
to rebate a portion of your commission to them “to make the
deal work,” that’s all the more reason to ask a LOT of questions
before agreeing to take on that particular transaction.
> Kristy L. Harrington, Esq., Law Off ice of Kristy L. Harrington, P.A., will be presenting
“What Would You Do?” at the 2019 Real Estate Legal Summit on September 5 (visit
orlandorealtors.org to register). She can be reached at kristy@lawharrington.com.
14 Orlando REALTOR® Summer 2019
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