Profile picture for caballes

Listing Agent Commission after Listing Expired, San Diego

Here's the history:
A seller lists home with listing agent from June 1st to Sept 1st.
June - My agent contacted the listing agent to see the house.  Appointment was set, but cancelled by seller the next day due to time conflict.
Mid July - My Agent asked for another appointment to see the house. The listing agent said its a short notice, so no go again.
July 29 - we were looking at another house but passed by the first house and inquired about it.  Seller said that it was no longer for sale due to many personal circumstances.  The seller has already cancelled the listing and got listing agent/broker contract termination dated July 20. But we offered to buy the house and leave us the house issues.

We reviewed the CA Listing Agreement:
On section 4A(2), it did not state any safety clause (left blank) after the cancellation period.  The listing agent never gave the seller an exclusion list of people within 3 days of cancellation (as required by agreement).  More importantly, we never really met the listing agent nor was ever shown the house since the two failed appointments.

Simply because we contacted the listing agent twice during the active listing period, is the agent entitled to commission?  No where does the contract say that.











 

  • July 29 2013 - San Diego
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Answers (20)

Profile picture for caballes
@Mack.  When the previous agent contacted the seller wanting to introduce another buyer and charge less commission (as oppose to original listing contract percentage that's now terminated), seller mentioned that seller already had a buyer (better terms/price).  Seller then asked listing agent to confirm that seller has no other obligation to listing agent from expired contract.  Listing agent never responded, hence the need for a third party, RE lawyer, to review contract. 

I can see how listing agent feels about this.  But, like what I said, I never met the owner or saw the house until everything was already done.  This house happened to be 7 houses away from another house I was looking at.   It was much more than what I initially wanted to spend but I think worth it.

@Pasadenan.  I have a buyer's agent. The seller hired agent to represent seller.   The previous listing agent/broker is out of the picture.
I think my agent's commission is 2.5% of sales price from sales proceeds.  Nice check to buy a nice car.  I wish I used my uncle (broker) so he could have kept the commission.  But I never mix family and money.   
  • July 31 2013
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Profile picture for Blue Nile
I'm just curious, if "your" agent (buyer's agent) is expecting any kind of commission, and if any "agreements" were signed with the agent, and if they are expecting a commission, how much, and who is expected to pay it?
  • July 31 2013
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The seller could have saved attorney fees by simply getting agreement from brokerage that they did not consider themselves entitled to a commission.
  • July 31 2013
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Profile picture for SoCal Engr
We (I) refer to "those folks" as "process monkeys"
  • July 30 2013
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Profile picture for caballes
@SoCal_Engr
LOL.  Where I work, we call Quality Assurance people Quality Engineers. 
People who pick parts are Components Engr. I'm EE - Hardware.
  • July 30 2013
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Profile picture for caballes
dup



  • July 30 2013
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Profile picture for SoCal Engr
@ caballes...

Started out EE, ended up in CompSci (s/w engr...not a "true engineer").
  • July 30 2013
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Profile picture for caballes
SoCal_Engr, what field of Engr are you?

4.A(2), the agent did not specify the days after listing termination that he/she is entitled to compensation.

The Seller paid 2 lawyers today for $300/hour each for consultation and both agree that seller is clear to sell.  Seller also retained lawyer to represent seller in this transaction.  I think I will trust their findings.

Yes, we never stepped into the house nor made an offer during the listing period.

BTW, I am the buyer and not really on the hook for this.  Just signed purchase agreement today.  Finances already lined up since I was already looking to buy.  The listing agent never made and demands even knowing that the seller was going to sell after the listing.  Agent in fact congratulated seller for being able to sell since the failed in the last 3 months.
  • July 30 2013
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Profile picture for SoCal Engr
Here is a link to a "standard CAR listing agreement".

What is interesting is....
Para 4.A(2) - States period of time the REA may still claim compensation as procuring cause.
Para 4.A(2)(a) - States conditions for REA to claim procuring cause if listing agreement is terminated and not re-listed with another REA.

Based on these paras, it sounds like the buyer (you) would have to have physically entered the property and been shown it by a REA, or the buyer (you) submitted a signed, writer offer to buy/lease/1031/etc. the property.

Since it sounds like neither apply to you, then you (more correctly, the seller) are okay to proceed.
  • July 30 2013
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What if the listing broker has a different copy?
  • July 30 2013
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Profile picture for caballes
Woohoo!

Seller just came back after consulting a RE lawyer and reviewed the listing agreement.  Seller was told he is free to sell to me since the contract has been terminated and there were no exclusions stated.
We never saw the house during the listing and only made an offer after.

Just got a call from bank stating loan was approved.  Only thing left is appraisal contingency.
  • July 30 2013
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Profile picture for Julie Wyss
A call to California Association of Realtors Legal Department may be beneficial.
  • July 30 2013
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Interesting.

So the only way to really know this, caballes, would be to contact the listing broker and receive at least a verbal understanding on the topic. Because the seller may be incorrect, and you could find yourself deep into escrow and have this issue pop up on you.


  • July 30 2013
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Profile picture for caballes
When we saw the house, they stated they were not going to sell because they were afraid they may owe commission.  They read to me the contract verbiage over the phone.  It was a standard CAR listing agreement with no clauses.
  • July 30 2013
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I'm curious, being here in Washington State - how did you get to review the listing agreement?
  • July 30 2013
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Profile picture for caballes
Bernard, that's an awesome suggestion for my agent to contact CAR.

Trisha, the listing agent is soliciting the seller again for another potential buyer.  But the seller mentioned that she already has a potential buyer (me, with better terms and offer).  Listing agent congratulated seller but asked how seller found the buyer.  This is when the seller panics.  No, the listing agent never asked for anything, but seller is scared of owing commission.  We reviewed the original listing contract and it is cut and dry.  After cancellation, no protection date was listed. Additionally, this only applied to potential buyers who were physically shown the house or made an offer thru the listing agent - neither applied to us.  Furthermore, after contract termination, an exclusion list was never submitted to the seller, per the contract.  Not that it matters, we were never seen by the listing agent.  The actual termination letter from the listing agent did not have conditions either.

The only link between my agent and the selling agent was the scheduling an appointment that never happened during the active listing.  But that is not covered by the listing agreement.

The seller and I will talk to a lawyer today.   I'll keep you guys posted. Thanks all.


  • July 30 2013
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I'm not reading anywhere in your account that the now "terminated" listing agent ever "demanded" payment.  Am I missing something?  You are home free as the contract goes. The burden does NOT fall to the buyer as the seller pays all commissions unless otherwise agreed to, and in writing.

Therefore, procuring cause is YOU. Congrats on your new home.
  • July 30 2013
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Are you going to be represented by your agent for this transaction? If so, I suggest you ask him to call the California Association of Realtors Legal Hotline. It could save you paying for a lawyer's opinion (which is still just an opinion without litigation).
  • July 30 2013
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Profile picture for caballes
It's a concern for me since I want to buy the house.  I'm trying to convince the seller to sell me the property. If the seller is still obligated to pay commission, they don't want to sell. 

It is true that I discovered the house thru the listing and my agent made efforts to see the house while listed.  But it just never happened. The seller was not uncooperative at the time, they really wanted to move.  The agent just could not bring them a buyer with the right offer.  The two appointments we asked for where short notices (less than 24 hours) and one time, it was the agent who couldn't go.

It wasn't a big push since at the time I was looking at another property.  I only saw the property after a week of listing cancellation. 

We are going to see a lawyer, hopefully today.  As fishy as it may sound, that is what happened.
  • July 30 2013
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I think the listing broker would have to make his case regarding procuring cause and whether or not his cancelled contract is still enforceable. It is the seller's responsibility to pay the listing commission, so I do not understand why this issue is of concern to the buyer. It is an interesting predicament, but if the reason you knew about the home being for sale was due to the listing agent's marketing efforts, if the seller was being uncooperative about showings, but then coincidentally sells it 9 days after cancelling his listing agreement due to "personal issues", I think a case could be made. But I am not a lawyer or qualified to give legal advice and would refer you (or more importantly, the seller) to a lawyer. 
  • July 30 2013
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