Open Houses in a Post-NAR Settlement World
A practice change required by the NAR settlement is that all MLS participants working with a buyer must enter into a written agreement before the buyer tours any home. This has raised questions about how agents should handle visitors to open houses. To help members be prepared, C.A.R. has created this Q&A about holding an open house in a post-NAR settlement world.
Q1: Can a listing agent hold an open house after the implementation of the NAR Settlement?
Yes. Nothing in the NAR settlement precludes hosting an open house.
Q2: Is an agent holding an open house required to have every visitor who enters the open house sign a:
1) registration/log-in sheet,
2) a non-agency agreement, or
3) a buyer representation agreement?
Whether any of these documents are required depends on the interaction of the agent and the visitor. But ideally, the listing agent will have one of these forms signed for the purpose of clarifying the relationship. And the good news is that C.A.R. has four different forms to help with these different situations.
Q3: What are those four forms?
Open House Visitor Non-Agency Disclosure and Sign-In
(C.A.R. Form OHNA-SI)
Buyer Non-Agency Agreement
(C.A.R. Form BNA)
Buyer Representation and Broker Compensation Agreement
(C.A.R. Form BRBC)
Property Showing and Representation Agreement
(C.A.R. Form PSRA)
Q4: Should all visitors to the property sign in using the OHNA-SI?
This is the best practice. Ask all adult visitors to sign in. By doing so, the visitor will be acknowledging that the agent at the open house is acting on behalf of the seller and is not representing the buyer. The visitor also can use the OHNA-SI to identify if they are working with another agent, so the open house agent or listing agent will know who to contact about future discussions about the visitor’s interest in the property.
Q5: When a buyer signs the OHNA-SI, is a separate form required for each buyer?
No. The OHNA-SI functions both as an advisory of non-agency and also as a sign-in sheet which has seven signature blocks. It is also not necessary to have children sign or even adults if the adults are not the buyers.
Q6: What if the listing agent finds out that the visitor would like to create a working relationship with the agent?
In that case, and assuming that the visitor has not entered into an exclusive agency agreement, the agent may want to ask the visitor to sign either a limited or a full buyer representation agreement.
For limited buyer representation, the new PSRA form can be used at open houses (but is not limited to open house properties). It cannot last longer than 30 days; it is only non-exclusive; it has space for up to three properties; and it can be cancelled at any time (although the broker may retain the right to be compensated for broker-involved properties).
For full buyer representation, the BRBC may be used. This form can be used for both listed property at an open house or multiple properties. The agreement can last for up to 3 months (but may be extended) and may be either for exclusive or non-exclusive representation.
Q7: What if the visitor refuses to sign anything but instead only wants to look at the property?
First, whether a prospective buyer signs an OHNA-SI or not, they are welcome to come into the open house and view the property. Signing the OHNA-SI is not a condition of entering the open house.
However, in that circumstance it is advisable for the open house agent to be guarded in their discussions. You do not want to create an implied or inadvertent agency. But merely talking to the buyer while making it clear that you are representing the seller and not the buyer does not likely constitute “working with a buyer” which would require a written buyer agreement. Unfortunately, since there is no bright line clearly distinguishing when “talking” to a visitor will lead the visitor to believe that you are “working” with them, caution would be prudent.
Accordingly, another approach would be to refrain from providing any information about the property other than what is on the information sheet prepared by the listing agent. Engaging beyond that may lead the visitor to believe that the open house agent is acting as their agent. If the visitor asks for information beyond what is contained in the information sheet, the open house agent should tell the visitor that they cannot provide such information unless the visitor is willing to sign in. This would be a more conservative risk management approach.
Finally, the listing agent may simply provide the buyer with the buyer non-agency agreement, Form BNA. This will help document the fact of non-agency. Even if the buyer does not sign it, providing it should prevent an agency by implication.
Q8: If another agent within the listing office is holding the open house, even though they are not the individual agent that obtained the listing, should they also ask visitors to sign in using the OHNA-SI?
Yes. This applies to every agent within the listing office, since every agent within the listing office at the open house is attempting to find a buyer for that property on behalf of the seller.
