FACTS: A seller approaches a real estate agent asking the agent to draft and negotiate a residential real estate contract for the seller’s property.  The seller has already found a buyer to purchase the property.

ISSUE: Is the agent permitted to draft and negotiate a purchase contract for the Seller’s benefit even if the property is not listed on the Multiple Listing Service (“MLS”)?

ANSWER: See Discussion.

DISCUSSION:

Article 26, Section 1 of the Arizona Constitution states:

Any person holding a valid license as a real estate broker or a real estate salesman … when acting in such capacity as broker or salesman for the parties, or agent for one of the parties to a sale …shall have the right to draft or fill out and complete, without charge, any and all instruments incident thereto.

Therefore, as long as the real estate agent is representing the seller in the transaction, there is no requirement for the property to be listed on the MLS.  The real estate agent may proceed to draft a contract and negotiate the sale on behalf of the seller.

However, if the agent is not representing a party to the sale, they are not permitted to draft the purchase contract.