Whether a broker is the procuring cause of a sale must be factually determined on a case-by-case basis. Many factors can impact a determination of procuring cause, but no one factor is by itself determinative. Procuring cause is in fact 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.

When reviewing the factors listed below, it is important to note that the occurrence of any particular factor in a fact situation does not necessarily mean that procuring cause does or does not exist. This is because it is the interplay of factors that is so important in recognizing procuring cause, not the presence of any one factor alone. A specific factor can, in fact, cut either way, depending on its importance compared to the other factors in the case and depending on when it occurs in the timeline of the case.

Procuring cause factors may be grouped, for organizational purposes, into nine different categories. These categories are:

• The nature and status of the transaction
• The nature, status and terms of the listing agreement or offer to compensate
• The roles and relationships of the parties
• The initial contact with the purchaser
• The conduct of the broker* or agent
• Continuity and breaks in continuity
• The conduct of the buyer
• The conduct of the seller
• Other information

In the analysis that follows, specific procuring cause factors are grouped by the above categories. In addition, where there is supporting case law, citations and brief explanations are provided to offer examples of the interplay of that factor with other factors and to suggest outcomes. Please note that much of the case law does not resolve disputes between brokers, but between sellers and brokers. Likewise, most of the cases involve open listings rather than exclusive listings. Nevertheless, these cases focus on two issues which are relevant to fact situations involving exclusive listings and broker-broker disputes -- that is, what has the broker been promised (by either the seller or the listing broker) and what must the broker do to attain his promised commission.

Fair housing is more than a list of dos and don’ts, rights and penalties, and mandatory continuing education. As stewards of the right to own, use and transfer private property, fair housing protects our livelihood and business as REALTORS® and depends on a free, open market that embraces equal opportunity.

REALTORS® recognize the significance of the Fair Housing Act and reconfirm their commitment to upholding fair housing law as well as their commitment to offering equal professional service to all in their search for real property.

NAR’s Fair Housing Action Plan, abbreviated ‘ACT,’ emphasizes (A)ccountability, (C)ulture Change, and (T)raining in order to ensure America’s 1.4 million REALTORS® are doing everything possible to protect housing rights in America. On November 18, 2020, NAR launched Fairhaven.realtor — an innovative online simulation training, where agents work against the clock to sell homes in the fictional town of Fairhaven, while confronting discrimination in the homebuying process. During the training, learners also walk in the shoes of a homebuyer facing discrimination. The training provides customized feedback that learners can apply to daily business interactions.