Bennion Deville Homes’ Terms and Conditions for Broker Compensation
The following terms and conditions apply to all Bennion Deville Homes (BDH) advertisements, solicitations, and communications concerning a listed property that indicates, either directly or indirectly, a seller’s willingness to consider paying a buyer’s obligation to compensate a buyer’s broker. These terms and conditions also apply to all BDH advertisements for properties listed for lease or rent as further set forth below.
1. Parties: Bennion Deville Homes (“BDH”) (DRE License Number 01325548) is a real estate broker who represents a seller or sellers (“Seller”) of a property in California that is listed for sale (“Property”). A buyer’s real estate broker and agent (“Buyer’s Broker) are duly licensed brokers and salespersons with the California Department of Real Estate (DRE) who represent a buyer or buyers (“Buyer”) for Property, including any prospective buyers or related parties. Buyer’s Broker could be BDH acting in a dual agent capacity.
2. MLS Restrictions: BDH is a participant of certain Multiple Listing Services (“MLSs”) that advertise BDH listings directly to other MLS participants, and through third-party vendors to members of the public. In August 2024, these MLSs no longer allow listing brokers to make any offers of compensation to buyers’ brokers through the MLS. This prohibition was a result of a 2024 nationwide settlement agreement to resolve a class-action lawsuit against the National Association of REALTORS® (NAR). Despite these MLS prohibitions, Seller may nevertheless authorize BDH to advertise in non-MLS marketing materials that Seller is willing to consider offers from buyers requesting for Seller to pay the buyer’s obligation to compensate the Buyer’s Broker.
3. Advertisement Defined: These Advertising Terms and Conditions apply broadly to any and all BDH advertisements, solicitations, and communications, including, but not limited to, any and all BDH websites, webpages, print ads, audio-visual ads, brochures, flyers, marketing materials, social media, or as otherwise communicated verbally or in writing by any authorized BDH agent or staff member (“BDH Advertisement”).
4. Advertisement Language: Any BDH Advertisement as defined that indicates, directly or indirectly, Seller’s willingness to consider offers requesting Seller to pay Buyer’s obligation to compensate Buyer’s Broker shall not be binding upon BDH in any way or under any circumstance. Instead, Buyer and Buyer’s Broker may submit to BDH an offer to purchase Property that includes such request. Seller will act in good faith to consider such request in Seller’s sole discretion, but Seller is under no obligation whatsoever to Buyer or Buyer’s Broker to agree to such request. No BDH Advertisement language concerning such request shall be binding upon Seller unless and until Seller enters into a valid written agreement to pay, which may be further conditioned upon additional terms and conditions. Any representation that Seller will consider such request must not be construed as a promise or assurance that Seller will accept such request.
5. Buyer Representation Agreement: If a Buyer’s Broker is an MLS participant, and working with a buyer for compensation, that Buyer’s Broker must enter into a written compensation agreement with the buyer before the buyer tours the Property, as according to NAR’s Settlement Agreement. Additionally, the Buyer’s Broker cannot receive compensation from any source, including Seller, that exceeds the amount or rate agreed to in that compensation agreement, also according to NAR’s Settlement Agreement.
6. Buyer’s Broker Obligations: Any Seller agreement to pay Buyer’s Broker is strictly conditioned upon a written Confirmation of Agency between Buyer and Buyer’s Broker (e.g., paragraph 2 of the Residential Purchase Agreement). Additionally, Buyer and Buyer’s Broker agree that Buyer’s Broker shall act as Buyer’s Broker throughout the homebuying process, and perform any and all real estate licensed duties and activities for Buyer until Close of Escrow.
7. Buyer’s Lender Approval: Buyer and Buyer’s Broker agree that, when applying for any mortgage loan to finance the purchase of Property, Buyer shall immediately disclose in writing to Buyer’s lender(s) any Seller agreement to pay Buyer’s Broker. Buyer and Buyer’s Broker further agree that if any Buyer’s lender disapproves of Seller’s payment, in whole or in part, Buyer shall notify Seller immediately and Seller’s obligation to pay Buyer Broker’s compensation shall be reduced accordingly. Under no circumstance shall Seller be obligated to conceal Seller’s agreement to pay Buyer’s Broker from Buyer’s lender, or be required to cooperate with any attempt to restructure the terms of a sales transaction to satisfy Buyer’s lender requirements.
8. Calculation of Compensation: Buyer and Buyer’s Broker agree that any Seller agreement to pay Buyer’s Broker a percentage of the purchase price shall be calculated based on the final purchase price at Close of Escrow, regardless of whether the purchase price at the acceptance of Buyer’s offer was higher or lower, or what may be stated on the compensation agreement between Buyer and Buyer’s Broker.
9. Payment to Buyer’s Broker: Any Seller agreement to pay Buyer’s Broker shall only be paid through escrow, and at the successful Close of Escrow, out of Seller’s sales proceeds, if any, that are held by the Escrow Holder for the sales transaction between Seller and Buyer. Buyer and Buyer’s Broker agree to execute any escrow instructions, documents, or forms, including tax forms, that are reasonably necessary for Seller to pay Buyer’s Broker. In the event that Seller fails to pay Buyer’s Broker for any or no reason, BDH shall have no obligation to pay Buyer’s Broker, to demand such payment from Seller, or to initiate any legal action or other action against Seller to recover any compensation that may be owed or any other damages. Any default or cancellation of the sales contract between Seller and Buyer shall automatically extinguish any Seller obligation to pay Buyer’s Broker.
10. No Assignment: Buyer and Buyer’s Broker agree that any Seller agreement to pay Buyer’s Broker pertains to Buyer’s Broker only, and cannot be assigned or otherwise designated to anyone else. Buyer and Buyer’s Broker agree to forever hold Seller and BDH harmless from any and all claims for compensation brought by any broker, broker-associate, salesperson, team member, or staff member who works for, or previously worked for, Buyer’s Broker.
11. MLS Reporting: Buyer and Buyer’s Broker agree that, for any sold Property, BDH may report any Seller agreement to pay Buyer’s Broker to any Multiple Listing Service (MLS).
12. Leases: For a Property that is listed by BDH for lease, instead of sale, any references in this document to a sales or purchase contract shall be replaced with a “lease agreement” instead. Also, any reference to “Seller” shall be replaced with “Rental Property Owner;” and any reference to “buyer” or “Buyer” shall be replaced with “Tenant;” and any reference to “Buyer’s Broker” shall be replaced with “Tenant’s Broker.” Additionally, any reference to “Close of Escrow” shall be replaced with “consummation of the lease agreement, including payment of Tenant’s move-in costs.” Additionally, paragraphs 5 and 7 above are inapplicable to a lease transaction.
