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Q: Can I amend a Buyer Representation Agreement (Buyer Brokerage Agreement) after it has been executed and we learn that there is more compensation offered than what the buyer owes me?

A: Let’s start with a definition, an amendment is a bilateral agreement that changes a term in the contract, such as compensation owed.

Let’s go through a fact pattern.

You represent a buyer and signed a Buyer Brokerage Agreement with them. The agreement specifies that you will be paid X for your services. You send properties to your client, and they select one they would like to see. You call the listing agent, and they say the seller authorized them to offer Y for cooperative compensation. It turns out that Y is greater than X. You memorialized the offer from the listing agent, presented an offer, and it was ratified. Then what?

This is when you need to act in the best interests of your client. You cannot accept any compensation greater than what you and your client have already agreed to. What can you do?

You need to sit down with your client and discuss what should happen to that excess. You can, for example, rebate it to your client. If your client thinks you did a great job, you can split the difference. Or any other sort of legal variation. Once you have agreed what happens to that excess, you both need to sign an amendment to the buyer agency agreement.

Remember, you cannot get paid more than what that agreement specifies. If you do not amend it, then your client will lose out.

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