How Does One Define the “Procuring Cause”?

In light of a flurry of recent inquiries about commissions, we decided to take a look at the current state of the law as it pertains to how one defines the term “procuring cause.” We started with the National Association of Realtor’s definition, which defines the procuring cause as follows:

“is … the interplay of factors which together demonstrate that the unbroken efforts of a specific broker were responsible for the buyer making the decision to consummate the sale on terms which the seller found acceptable. In other words, a broker who is the procuring cause of a sale is a ‘sine qua non’ of the sale — the sale would not have occurred but for the broker’s efforts.”

If you are even more confused, you are not alone. A large brokerage explains the concept of procuring cause as follows:

“The interactions between a prospective client and a real estate agent that entitles the agent to a commission percentage upon the purchase of a home. If a client has worked with multiple agents over the course of her search, it may be difficult to determine which agent is ultimately responsible for helping the client get the home. Disputes usually occur between the agent that wrote the offer and another that may have helped the client see homes in the past, so there’s an investigation to find out which agent had first contact with the client and showed them the home they eventually bought. Real estate brokerages typically avoid procuring cause disputes by requiring clients to sign a buyer’s agency agreement once they decide to work with an agent and their brokerage. The agreement commits clients to working with that agent to buy a home. The length of the agreement varies, but usually lasts three to twelve months.”

We didn’t find this terribly useful either, so we decided to look at Black’s Law Dictionary and review the recent case law about procuring cause. Black’s Law Dictionary doesn’t even make an attempt to define procuring cause, and unfortunately the case law  is all over the board, but with two common themes (a) that the agent must be working with the buyer, and (b) that the agent must have taken some affirmative step to introduce the buyer to the seller and/or the property. Otherwise, the determination of whether or not an agent is the procuring cause is very fact specific.  In other words, if someone tells you that they know with any degree of certainty what the term procuring cause means in any situation, then they haven’t reviewed the over 200 appellate cases attempting to define it.

What should a real estate professional take from this?  Be very careful when introducing a buyer to a seller and/or property.  We have seen a noticeable proliferation of attempts by sellers and builders to attempt to cut a buyer’s agent out of a commission. If you don’t have your buyers sign buyer agency agreements, then make sure you are careful to understand the terms under which a seller is willing to pay a commission and go that extra mile to insure that it is clear to everyone who you are representing and your expectation that you receive a commission for your efforts. This can be the trickiest with builders, where we have seen the greatest increase in realtor inquiries over the last several months as a result of fairly aggressive positions taken by a small number of builders with regard to the payment of commissions on new construction.

If you ever have a question about whether or not you were the procuring cause, or if you want to be proactive and minimize the opportunity for a commission dispute in the future, then you should consult with a real estate attorney.


Berlin-Patten, PLLC

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged. 


3700 S. Tamiami Tr, Suite 200, Sarasota, FL 34236   P (941) 954-9991  F (941) 954-9992


247 S. Tamiami Trail, Suite 201, Venice, FL 34285  P (941) 955-9991  F (941) 484-9992


8130 Main Street, Suite 206, Lakewood Ranch, FL 34202   P (941) 907-9022  F (941) 907-9024  

Did you find this real estate law content useful, but need actual legal counsel?

Speak to a real estate attorney!

, , , ,

What’s So Special About the Assessment?

  One of the many questions commonly asked by realtors, sellers, and buyers pertains to special assessments – to whom are the special assessments owed, why special assessments are being paid, and how a buyer would be alerted to the existence of the special assessments. In short, the term “special assessments” can be used to…

Well, That Escalated Quickly!

  Do I hear $500,000? $510,000? $520,000?! Sold to the highest bidder! No, this is not a BLOG about auctions, but rather about the feeding frenzy that is the current Southwest Florida residential real estate market. As anyone in the local real estate business knows, we are currently experiencing market conditions the likes of which…

“Will You Accept This Addendum?”

  Roses are red, Ink on contracts are blue, it’s the middle of season, which addendum is right for you? When writing an offer, addenda specifically tailored toward the current transaction might be included. Picking the perfect addendum, like finding a Valentine, can be challenging and overwhelming. The FAR/BAR Contracts are dense and full of…

The Old Switcheroo!

  You have a Seller ready to list the residence for sale, you’ve confirmed that the Estate of the original owner who passed away has been opened, and a Personal Representative has been appointed by the Court. Your Buyer is an investor who works with a Limited Liability Company (LLC) who wants to buy the…

Use Caution When Attempting to Reduce Commissions in the Contract

  Every once in awhile I see handwritten clauses added to Section 20. Additional Terms of the Contract that attempt to reduce the commission that will be paid by the Seller to the Realtors at the Closing of the transaction. This typically happens when Brokers agree to a reduced commission as an enticement for the…

Do You Have 2020 Vision for Your Closing?

On behalf of the entire BPE family, we want to wish everyone a Happy New Year. Its times like this where it can be helpful to reflect on the prior year, and since this year is 2020 (presumably the year of “perfect vision”), let’s take a step back and reflect on those instances where the…

Show Me The Money!

Disbursement instructions to closing agents come in all shapes and sizes, but they all have one thing in common. Each involves a specific direction to the closing agent to disburse the funds entrusted to the closing agent precisely as instructed. The most common form of disbursement instructions involve the settlement statement itself (which is executed…

What Happens During My Real Estate Transaction?

Indispensable Components to a Real Estate Transaction The Contract is signed; the earnest money paid; and the title agent selected. What do we do now?  Well of course we start the due diligence, which begins with procuring a title search of the property. Seems like simple stuff, right?  Not so fast, however. The purpose of…

Expired Listing Agreements and the Procuring Cause Doctrine

A listing agent’s income is largely dependent on successfully closing deals. A diligent listing agent will spend countless hours researching a property, marketing a property, and communicating with potential purchasers and agents. Recently, we have seen a trend where sellers and purchasers who were connected through a listing agent attempt to negotiate (or close) a deal after the listing agent’s exclusive…

New! Access Your Files on Berlin Patten Live!

BERLIN PATTEN LIVE: NEW ONLINE COMMUNICATIONS SYSTEM After more than a year of planning, development, and implementation, Berlin Patten is proud to announce the launch of our new electronic communications system, Berlin Patten Live.  Berlin Patten Live is intended to virtually eliminate any communication barriers and ensure that parties to transactions handled by Berlin Patten…

Major Differences Between the As Is Contract and the Regular FAR/BAR Form

The As Is Contract and Regular Florida Realtors/Florida Bar Contract forms are essentially the same with the following exceptions: 1. Heading. Of course, the inclusion of “As Is” in the heading sometimes draws concern and can create minor angst for Sellers since they don’t want Buyers to get the impression that the Property is substandard.…

Addressing Exchange Rates for Foreign Buyers/Sellers

ADDRESSING EXCHANGE RATES FOR FOREIGN BUYERS/SELLERS When the opportunity arises to represent an international clientele, a factor that is not always considered in the transaction is the cost of exchanging their native currency to USD, or vice versa. When money is sent from one country to another, the funds have to be converted to the…

What About The Flat Screen TV?

There is no question that home-technology has improved tremendously in recent years. As a result of this improvement, we have received a steady increase in questions and disputes regarding whether an item should be considered a fixture or personal property with respect to residential sales. For example, flat screen TVs and built in speaker units…

Preventing Post Closing Issues

Many clients, their agents, and unfortunately some closing/title agents believe that the end of a real estate transaction occurs when it closes and funds.  Too many times we have seen post-closing glitches, oversight, or lack of follow-up lead to problems with the future sale of a property.  Over the last few weeks we have run…

How to Effectively Use an Attorney From a Realtor’s Perspective

We have found with our experience that most real estate professionals are not aware of how they can most effectively utilize an attorney throughout a real estate transaction to not only protect themselves, but to better serve their clients. Many real estate professionals (and/or even their clients) are under the assumption that they will receive…

And the Survey Says?

Originally Published: 5/12/2012 Survey review is a prevalent part of our practice whether we do so for purposes of property due diligence, removing or confirming title issues, etc. More often than not Buyers are unclear as to the necessary requirement that a survey must include to be used for purposes of removing title exceptions and…