Dec152025
Real Estate Q&A Series

Do I have to pay any part of the buyer’s agent commission under current practices, and how can that be negotiated to help the sale? – North Carolina

Short Answer

In North Carolina, there is no automatic legal requirement that a seller or trustee must pay a buyer’s agent commission; it is a contract term that can be negotiated in the listing agreement and, if needed, in the purchase contract. Current industry practice still often has the seller fund some or all of the buyer’s agent fee from sale proceeds, but the amount, structure, and conditions are flexible. For a trust-owned home, the trustee’s duty is to negotiate a commission arrangement that is reasonable for the trust while keeping the property attractive to buyers. A trustee should also ensure the listing correctly names the trust as seller, comply with any required disclosures or available exemptions, and understand how the exclusive listing period and any “protection period” work if a buyer is found later.

Understanding the Problem

The narrow question is whether, under North Carolina real estate practices, a seller (here, a trustee of a deceased parent’s trust) must pay any portion of a buyer’s agent commission, and how that commission can be structured or negotiated to support a successful residential sale. A related concern is how this fits with property disclosure duties and the meaning of an exclusive listing period when a buyer appears during or after that period. The situation often arises when a trust owns the house, the listing agreement is drafted in the wrong name (for example, using an estate instead of the trust), and the trustee wants clarity on: who is actually obligated to pay commissions, what disclosures are still expected or exempt, and whether an exclusive right-to-sell listing will require a commission even if a buyer is found independently.

Apply the Law

Under North Carolina law, real estate broker compensation is governed mainly by contract: commissions are owed only if a written agreement for broker services, signed by the party to be charged or its authorized representative, provides for that compensation. State disclosure statutes separately govern what an owner (including a fiduciary seller) must tell a buyer about the property and when, and those statutes also contain specific exemptions for transfers made by fiduciaries such as trustees. Exclusive right-to-sell listings commonly give the listing firm the right to a commission if the property sells during the listing term (and sometimes during a short protection period), regardless of who finds the buyer, but these terms can be adjusted by agreement.

Key Requirements

  • Written broker agreement: A broker may enforce a right to commission only if there is a written, signed agreement for broker services with the owner or a duly authorized fiduciary.
  • Correct party and authority: The agreement should identify the true owner (here, the trust) and be signed by the trustee with authority under the trust document to sell and to pay reasonable commissions.
  • Disclosure and timing duties: Residential sellers must generally provide standard disclosure forms on property condition and owners’ association matters, unless a fiduciary exemption applies; if required, the disclosures must be delivered before or at the time the buyer makes an offer, or the buyer may gain a short cancellation right.

What the Statutes Say

Analysis

Apply the Rule to the Facts: In the described scenario, the trustee is preparing to sell a trust-owned home, but the listing agreement identifies the estate as seller. Under the contract requirement, the listing firm’s legal right to a commission depends on a written agreement with the actual owner; correcting the agreement to name the trust and to show the trustee’s authority is important before relying on or renegotiating any commission structure, including any offer to fund a buyer’s agent fee. Because North Carolina law exempts transfers by a fiduciary in the course of administering a trust from the standard residential property disclosure statement requirement, the trustee may not need to provide the usual form, but still must avoid fraud or misrepresentation and may opt to make limited or “no representation” disclosures to reduce risk. An exclusive right-to-sell listing for the trust property can be negotiated so that the trustee understands whether a commission is owed only if the listing agent procures the buyer, or whether it is owed for any sale during the term (and possibly during a negotiated protection period), and how much—if anything—the trust will pay toward buyer-agent compensation.

Process & Timing

  1. Who files: The trustee, often with counsel, negotiates and signs the listing agreement. Where: With the chosen North Carolina real estate brokerage firm (not filed in court). What: A written listing agreement (commonly an exclusive right-to-sell form) that identifies the trust as owner, sets total commission, and allocates any buyer-agent compensation. When: Before the property is actively marketed or entered into a multiple listing service.
  2. Once the property is listed, the listing broker markets the home, explains to prospective buyers and their agents how compensation will work, and helps the trustee respond to offers. If any statutory disclosure forms are required rather than exempted, they should be completed and delivered before or at the time a buyer makes an offer to avoid giving the buyer a short cancellation right.
  3. At contract and closing, the purchase agreement and closing disclosure are prepared to match the negotiated commission structure, including any payment to a buyer’s agent from the seller’s proceeds. The closing attorney disburses the agreed commissions from trust sale proceeds, and the trustee reports and accounts for the transaction in the trust’s records.

Exceptions & Pitfalls

  • Fiduciary sellers, including trustees, are often exempt from the standard residential property disclosure forms, but that exemption does not allow intentional misstatements or concealment of known material defects.
  • Leaving the wrong owner named in the listing (for example, an estate instead of the trust) can create confusion about who owes a commission and who has authority to sign sale documents.
  • Not spelling out in writing how much, if any, of the total commission will be offered to a buyer’s agent can lead to disputes with both the listing firm and cooperating brokers.
  • Exclusive right-to-sell agreements may include a protection period during which a commission is still owed if the property sells to a buyer first introduced during the listing; failing to understand or negotiate that term can surprise fiduciaries who later find a buyer on their own.

Conclusion

Under North Carolina law, payment of a buyer’s agent commission in a residential sale is not automatic; it depends on what the written listing and purchase agreements say, and those terms are negotiable. For a trust-owned home, the trustee should ensure the listing names the trust as seller, clearly sets the total commission, and specifies any portion to be paid to a buyer’s agent, all consistent with the trustee’s duty to act prudently for the trust. The most important next step is to revise and sign a correct written listing agreement with the broker before marketing the property so commission obligations and any disclosure steps are clear from the start.

Talk to a Real Estate Attorney

If a trust-owned North Carolina home is about to be listed and there are questions about buyer’s agent commissions, disclosure duties, or an exclusive listing period, our firm has experienced attorneys who can help clarify the trustee’s obligations and options. Call us today at 919-341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If there is a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Real Estate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.