Takeaways:
- Pursuant to Article 9 of the Code of Ethics, REALTORS® should ensure that listing agreements and representation agreements clearly set forth the specific terms, conditions, obligations and commitments of the parties.
- Make reasonable efforts to explain to clients or customers the nature and disclose the specific terms of the contractual relationship being established in accordance with Standard of Practice 9-2 of the Code of Ethics.
- For the protection of all parties, REALTORS® shall use reasonable care to ensure that documents pertaining to the purchase and sale of real estate are kept current through the use of written extensions or amendments in accordance with Standard of Practice 9-1 of the Code of Ethics.
- Ensure your clients are aware that listing agreements are binding contracts requiring full performance of all parties, even if a sale is not consummated due to the fault of the client.
- Be aware that a party’s failure to read an enforceable contract does not excuse performance or defeat a party’s contractual rights.
- Consult legal counsel and follow your jurisdiction’s applicable law regarding the requirements of signatures in agreements and their applicability in enforceability.
On January 14, 2026, the Florida Third District Court of Appeal reversed a final judgment entered in favor of a seller, finding that a listing broker was entitled to compensation under the parties’ listing agreement. The appellate court held that the trial court improperly relied on a separate “Instructions to Agents” document and incorrectly found that certain offers failed to conform with terms entitling the listing broker to compensation.
In Florida common law, where a broker procures a willing, ready, and able customer to purchase property according to the terms of the offer, and the transaction is defeated due to the fault of the seller, the broker is entitled to his commission, even though the transaction is not consummated.
In June 2017, seller entered into a six-month exclusive right of sale listing agreement with listing broker for a residential sale at a listing price of $499,500. The agreement provided compensation to listing broker would be due if seller refused or failed to agree with the listing price and terms of the listing agreement. The agreement also contained a clause stating it was the parties’ entire agreement and prohibited oral or unsigned amendments.
When the listing agreement was executed, seller also signed a separate document titled Instructions to Other Agents for Submitting an Offer (hereinafter “Instructions to Agents”). The Instructions to Agents document informed brokers presenting offers of additional requirements, including that offers must use a certain “as-is” form, and must include a property inspection report, pre-qualification letter and additional documentation. Seller signed the Instructions to Agents document, but listing broker did not. Further, the Instructions to Agents was not referenced in the listing agreement.
The listing broker presented multiple offers at full price or higher, although each offer included various conditions such as the correction of open permits, financing elements, furniture removal, or shutter removal. Seller rejected based on the desire to increase the sales price, but a formal amendment was never executed.
After the listing agreement expired, listing broker sued seller for breach of contract, arguing the full price offers met the terms of the listing agreement. Following a nonjury trial, the trial court entered judgment for seller, concluding that the offers were non-conforming because the various provisions were inconsistent with the Instructions to Agents document, thus relieving the seller of their fee obligation to listing broker.
Listing broker appealed, and the appellate court first held that the Instructions to Agents document was not part of the listing agreement, nor was the document a contract on its own. The court emphasized the Instructions were signed only by seller and imposed no reciprocal obligations. Additionally, neither document referenced the other, and Florida law requires clear reference between documents and signatures by the relevant parties. Further, the listing agreement expressly stated it was the parties’ entire agreement.
The appellate court rejected seller’s argument that the offers were nonconforming due to the various conditions present with each offer. The absence of the various conditions was not a requirement of the listing agreement, and testimony showed that seller rejected an otherwise qualifying offer based on price. The court found seller sought to unilaterally amend the listing agreement by increasing the listing price without a written amendment.
The appellate court ultimately reversed and instructed the trial court to award listing broker their compensation, finding that the seller’s refusal to accept a conforming offer in the absence of an amendment entitled the broker to recovery.