Seller Representation Agreement — Exclusive Right to Sell, Exchange or Option — RPI Form 102

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This form is used by a seller broker when entering into the employment of an owner of a property as their exclusive agent for a fixed period of time, to market the property for sale, locate a buyer and sell the property.

Your use of RPI Form 102

Exclusive listings

Under an exclusive listing, a broker receives the sole right to represent:

an owner by marketing the listed property for sale or lease and locating a buyer or tenant;
a buyer or tenant by locating property; or
the owner or a lender to originate a trust deed mortgage.

Exclusive listings require an agent to use diligence in their efforts to fulfill the client’s objectives in locating a buyer, tenant or lender for the property. [See RPI e-book Real Estate Principles, Chapter 24]

An exclusive listing has a specified period of employment set by an expiration date of the employment, such as 90 or 180 days after its commencement. When an expiration date is not included in an exclusive listing, the broker faces suspension or revocation of their license by the Department of Real Estate (DRE). [Calif. Business and Professions Code §10176(f)]

Two types of exclusive employment agreements for buying and selling real estate exist:

an exclusive agency agreement for a seller or buyer; and
an exclusive right-to-sell or right-to-buy representation agreement. [See RPI Form 102, 103.1 and 103.2]

Both types of exclusive listings establish the broker and their agents as the sole licensed real estate representatives of the client (seller or buyer).

However, they are distinguished by whether or not the broker has any right to a fee when the property is sold or located solely by the efforts of the client.

Under an exclusive agency agreement’s fee provision, the broker does not earn a fee when the client, acting independently of any other broker and the client’s broker, accomplishes the objective of the employment, i.e., selling the listed property or locating and buying the property sought.

Conversely, under an exclusive right-to-sell/buy agreement’s fee provision, the broker earns a fee no matter who during the listing period produces the buyer or locates the property sought under the listing, be it the client, another broker or other representative of the client, or the client’s broker.

Exclusive right-to-sell representations

An exclusive right-to-sell representation affords a real estate broker the greatest protection of their fee. It is also the most commonly used type of employment. [See RPI e-book Real Estate Practice, Chapter 9]

The exclusive right-to-sell representation employs the broker as the sole agent to act on the behalf of the owner to market the property and negotiate any sale with all potential buyers and their agents. The broker is entitled to a fee regardless of who procures the buyer. [See RPI Form 102]

Under the exclusive right-to-sell agreement, the owner relinquishes their right to market the property with other brokers or defeat entitlement of the seller broker to compensation by selling the property themselves or removing it from the market.

An owner of real estate, on entering into an exclusive right-to-sell representation agreement, grants a broker the right to locate a buyer for the property prior to the expiration of the period of employment specified in the seller representation agreement.

The broker is entitled to the fee agreed to in the representation agreement when, during the representation period:

the property is sold on any terms, no matter who produces the buyer; or
the broker or their agent presents the seller with a bona-fide offer from a ready, willing and able buyer on terms sought by the seller under the listing, or on other terms accepted by the seller. [Calif. Civil Code §1086(f)(1)]

Exclusive right-to-sell representations give a broker and their agents the greatest incentive to work toward attaining the client’s goal of locating a buyer. The seller broker does not compete with the client to sell the property — they work together to achieve the sale. [See RPI Form 102]

Analyzing the right-to-sell listing

The exclusive right-to-sell representation agreement is prepared and submitted to the seller as the broker’s offer to act as the seller’s exclusive real estate agent to:

market the seller’s property;
locate a ready, willing and able buyer; and
negotiate a sale. [See RPI Form 102]

A seller broker uses the Seller’s Representation Agreement — Exclusive Right to Sell, Exchange or Option form published by Realty Publications, Inc. (RPI) when entering into the employment of an owner of a property as their exclusive agent for a fixed period of time. The form allows the seller broker to market the property for sale, locate a buyer and sell the property. [See RPI Form 102]

Each section in the exclusive right-to-sell representation agreement has a separate purpose and need for enforcement. The sections include:

Brokerage services: The employment period for rendering brokerage services, the broker’s due diligence obligations and any advance deposits by the seller. [See RPI Form 102 §§1 and 2]
Broker fee: The seller’s obligation to pay a broker fee, the amount of the fee and when the fee is due. [See RPI Form 102 §3]
Conditions: Authority for the broker to receive a buyer’s purchase offer, accept a good-faith deposit, enter into fee-splitting arrangements with brokers representing buyers and enforce the listing agreement. [See RPI Form 102 §4]
Property description and disclosures: Identification of the listed real estate and any personal property that is also being sold, the terms of existing financing and the conditions of the property. [See RPI Form 102 §§5, 6 and 7]
Sales terms: The price and terms sought by the seller for the sale, exchange or option of the property. [See RPI Form 102 §§8, 9, 10 and 11]
Signatures and identification of the parties: On completion of entries on the listing form and any attached addenda, the seller and broker or their agent sign the document consenting to the employment. [See RPI Form 102]

Similarly, when a short sale of a property is involved, the broker uses a version of the representation agreement with a short sale contingency. [See RPI Form 102-1]

Instructions

Preparing the seller’s representation agreement

The following instructions are for the preparation and use of the Seller’s Representation Agreement, RPI Form 102, with which a seller employs a broker as their exclusive agent to market a property for sale and locate a buyer.

Each instruction corresponds to the provision in the form bearing the same number.

Editor’s note — Check and enter items throughout the agreement in each provision with boxes and blanks, unless the provision is not intended to be included as part of the final agreement, in which case it is left unchecked or blank.

Document identification:

Enter the date and name of the city where the listing is prepared. This date is used when referring to the listing agreement.

1. Retainer period:

1.1 Listing start and end date: Enter the date the brokerage services are to commence.

Enter the expiration date of the employment period. The expiration needs to be set as a specific date on which the employment ends since an exclusive listing is being established.

1.2 Broker’s/agent’s duty: States the broker and their agents promise to use diligence in their effort to locate a buyer for the listed property. The agency duties a broker and their agents owe the seller are always implied, if not expressed in writing.

2. Seller’s deposit:

2.1 Advance fees and costs: Enter the amount of deposit negotiated to commence the brokerage services.

Fill out and attach the Listing Package Cost Sheet addendum detailing the services to be rendered or costs to be incurred and charged against the deposit. [See RPI Form 107]

3. Brokerage fee:

3.1 Fee amount: Enter the fee amount negotiated to be paid as a percentage of the sales price or a fixed dollar amount. This amount will be paid when any one of the following conditions occur triggering payment:

a. Fee on any sale: States the brokerage fee is earned and due on 1) presentation during the listing period of an offer for the price and terms sought under the listing, or 2) any sale, exchange or option of the property agreed to by the seller during the listing period.

b. Fee on withdrawal: States the brokerage fee is earned and due if the seller, without the broker’s consent, withdraws the property from the market or significantly interferes with the broker’s ability to market the property.

c. Fee on termination: States the brokerage fee is earned and due if, during the listing period, the seller terminates this employment.

d. Safety clause fee: States the brokerage fee is earned and due if, within one year after the listing expires, a prospective buyer whom the broker or broker’s agent negotiated with during the listing period and whose name the broker registered with the seller on expiration of the listing, negotiates to buy, exchange for or acquire an option to buy the listed property, and the negotiations culminate in a binding agreement with the seller. Within 21 days after expiration of the listing period, the broker needs to provide the seller with a list of the prospective buyers. [See RPI Form 122]

3.2 Replacement property fee: States an additional fee is earned and due, based on the same terms as the fee for a sale of the listed property if, through negotiations involving the broker, the seller acquires replacement property, such as occurs in a IRS §1031 tax-exempt transaction.

3.3 Hourly fee: Enter the negotiated dollar amount for the broker’s per-hour fee. The hourly fee is earned for time spent on behalf of the seller if the property is not sold, exchanged or optioned after a diligent effort is made to market the property and locate a buyer. Enter the maximum amount the broker can earn on a per-hour basis.

4. General provisions:

4.1 Agency Law Disclosure: States the seller acknowledges receipt of the Agency Law Disclosure. [See RPI Form 305]

4.2 For Sale signs: Authorizes the broker to place For Sale signs on the property and publish information (in multiple listing services (MLSs), classified ads, broadcasts, flyers, etc.) regarding the property described in the listing.

4.3 Authority to share fees: Authorizes the broker to cooperate with other brokers and share with them any fee paid on any transaction.

4.4 Authority to accept deposits: Authorizes the broker to work with buyers to obtain offers and receive good-faith deposits.

4.5 Handling offers: Authorizes the broker to deliver offers from buyers to the seller in person, by electronic transmission (fax or email) or by mail.

4.6 Conflict of interest: States the broker may have or will contract to list comparable properties or represent buyers seeking comparable properties during the listing period.

4.7 Mediation provision: Provides for the parties to enter into non-binding mediation to resolve a dispute remaining unsolved after 30 days, prior to filing an action.

4.8 Attorney fees: Entitles the prevailing party to attorney fees if litigation results from the seller’s failure to pay fees or the broker’s breach of an agency duty, unless the prevailing party proceeded with litigation without first offering to enter into mediation.

4.9 Choice-of-law provision: States California law will apply to any enforcement of this employment.

5. Real estate:

5.1 Type of real estate: Enter a brief description of the type of real estate to be sold, such as apartment, commercial, office, industrial, land or single-family residence (SFR), its legal description or common address, and the vesting of its title.

5.2 Encumbrances of record: Enter all financing of record which are liens on the real estate, including information on amounts, payments, interest rates, impounds, due dates and type of lenders.

Mortgage information submitted to the MLS or included in a marketing (listing) package gives a prospective buyer the alternative of making an offer which includes the existing mortgage as part of the purchase price.

6. Personal property included:

6.1 Description: Enter a brief description of any personal property included in the price. If numerous items or inventory are included in the sale, prepare and attach an exhibit for inventory/personal property and refer to it by entering “See attached Personal Property Inventory – Transferred with Real Estate.” [See RPI Form 256]

6.2 Encumbrances: Enter the balance, terms of payment, interest rate, due date and the name of the lender on any financing secured by the personal property.

7. Listing package addenda: Check the appropriate boxes and attach each addendum to be prepared or reviewed by the seller for inclusion in the listing package. The addenda will contain the seller’s representations about the property needed by the broker to properly market the property to locate and induce prospective buyers to purchase the property.

Editor’s note — The Agency Law Disclosure is mandated to be included in the seller’s listing agreement regarding one-to-four unit residential property, the sale or purchase of commercial property and the lease of commercial property with lease terms exceeding one year. Failure to include the disclosure may subject the agent to a penalty of a lost fee on the resulting sale. The applicable federal and California residency and withholding disclosures are also most prudently presented at the listing stage since the information is known to the broker and may be of financial concern to the seller. [See RPI Form 305]

The other addenda listed are disclosures about the property which are prepared by the seller and received by the broker to be included in the listing package for delivery to prospective buyers so they will be informed of the property’s condition before the seller accepts an offer or makes a counteroffer.

7.1 Non-listing package addenda: Check the appropriate boxes and attach each addendum prepared by the broker and reviewed with the seller to disclose the costs the seller will incur on the sale of the property.

8. Sale terms:

8.1 Price/terms sought: Enter the dollar amount of the price sought for the property by the seller.

a. Cash price: Check the box to provide for the price to be paid in cash on closing. The seller is to discharge and clear all liens from title, either themselves or through escrow.

b. Mortgage assumption: Check the box if the seller will allow a buyer to pay a cash down payment (to cash out the seller’s equity) and assume the mortgage(s) referenced in section 5.2.

c. Carryback financing: Enter the amount of the down payment the seller will accept. Enter the amount of any existing financing the seller will allow a buyer to assume. Enter the amount, terms of payment, interest rate, the number of years for monthly amortization payments, and the due date for carryback financing the seller will accept from a creditworthy buyer.

8.2 Sale and closing costs: Check the box for each item of expense the seller will incur to market the property. Prudent practice dictates the seller proceed to promptly prepare disclosures and authorize the inspections, reports or clearances needed for the broker to properly market the property and inform prospective buyers about its condition before the seller enters into an agreement to sell the property.

9. Exchange terms:

9.1 Acquisition property: Enter the type of property, its location (city, county or state) and the dollar amount of equity and debt on replacement property the seller is willing to acquire with the net proceeds from a sale of the listed property or by an exchange of its equity.

10. Option terms:

10.1 Seller will option: Enter the amount of option money the seller will accept to grant an option to a buyer. Enter the period during which the option may be exercised.

11. Other terms: Enter any special provision to be included in the listing.

11.1 Vacating the property: Enter the date or event on which the seller (or a tenant) will vacate the premises, such as “the close of escrow.”

11.2 Additional terms: Enter any additional terms stipulated by the seller.

Signatures

Broker’s/Agent’s signature: Enter the date the listing is signed. Enter the broker’s name and DRE license number. Enter any agent’s name and DRE license number. Enter the broker’s (or agent’s) signature. Enter the broker’s address, telephone and fax numbers and email address.

Seller’s signature: If additional sellers are involved, check the box, prepare a Signature Page Addendum form referencing this listing agreement, and enter their names and obtain their signatures until all sellers are individually named and have signed. Enter the date the seller signs the listing and the seller’s name. Obtain the seller’s signature. Enter the seller’s address, telephone and fax numbers and email address. [See RPI Form 251]