For Enforceable Contracts, Put It on Paper

Putting offers and contracts into writing isn't a must, but it's always best.

September 1, 2008

Q:Must all offers to purchase property be in writing?

A: At least two Articles in the Code of Ethics and one or more Standards of Practice have a bearing on your question.

Article 9 provides that “REALTORS®, for the protection of all parties, shall assure whenever possible that all agreements related to real estate transactions including, but not limited to, listing and representation agreements, purchase contracts, and leases are in writing in clear and understandable language.”

Since Article 9 says “whenever possible,” there isn’t an absolute obligation in the Code to have an offer to purchase in writing in every instance. However, REALTORS® should be prepared to explain why a written offer wasn’t possible.

For example, suppose a buyer you were assisting wanted to make an offer quickly while out of town. In such a case, the buyer might direct you to submit an offer by phone to your seller client. In that case, the offer wouldn’t be in writing, although you should write a memo for the transaction file with all the offer details.

In the same vein, Standard of Practice 1-6 states that “REALTORS® shall submit offers and counteroffers objectively and as quickly as possible.”

Because there is no specific reference to written offers in the Standard, it would be appropriate for you to submit an oral offer in such a case. Even if the buyers simply decided not to put their offer in writing, you would still be required to present it under Standard of Practice 1-6.

Because Article 1 of the Code obliges REALTORS® to “. . . protect and promote the interests of their client,” failing to present an offer, even an oral offer, would be an ethics violation.

One caution is that while you may ethically present oral offers, the statute of frauds in many states requires that contracts for the sale of an interest in land must be in writing to be enforceable.

Bruce Aydt

Attorney Bruce Aydt, ABR, CRB, SRS, is a national real estate educator, a Missouri real estate broker, and past chair of the National Association of REALTORS® Professional Standards Committee.