Profile picture for madeintheUSA

We put contract on SS along with good faith $$$ so listing agent would take it off the market. The

We put contract on SS along with good faith $$$ so listing agent would take it off the market. Contract, along with pre-approval (not just pre-qual) letter was submitted and accepted contingent upon inspection (it needs repairs). After we paid for home inspection, termite inspection, etc, we submitted another copy that was $30k lower than original offer because almost $40k in repairs are needed. Along with this, we submitted the HOA portion of contract. This was 4 days ago. Today, the listing agent texted my agent asking about the price drop and that it's unacceptable and that we need to come back up on our price or she will relist the home tomorrow. She has not even done her fiduciary duty to the bank by submitting the offer (she apparently didn't review contract before submitting it to clients, but sellers signed it...it's a shortsale, they don't care). My agent talked wit his broker who said it's unethical and breach of contract and he will advise listing agent that we will be taking legal action (we will). Can listing agent relist home and sale it? it's under contract with us and we have dotted our "i's' and crossed our "t's." We our approved for loan, put down $$$ good faith, have paid money to inspect the home, etc and have a signed contract by the sellers. 
  • April 16 2012 - Tampa
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Answers (13)

Best Answer

Ok, Mrs.USF, that is a better explanation and puts a different spin on things...

No, she can't do that...you have a contract with the seller, period.  The fact that she was asleep and missed the lower price (what did she think was being resigned?) is her problem and does not change the fact that you have a lawful contract with the seller.  So now it is her duty to submit the offer to the bank for their approval because she has a responsibility to the sellers.

Chances are that the bank will counter and want more money than the contract price.

Your agents broker needs to chat with the other agents broker and request verification that the offer was submitted to the bank...and hold their feet to the fire. And if the bank comes bank with a response, you need to see the paperwork on that.

Sure, you as a buyer can contact the seller, but unless they are savvy, that may just confuse them and muddy the waters more. 

Eve
  • April 16 2012
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Profile picture for sunnyview
" I think the agent is just mad at herself because she failed to review the updated contract prior to forwarding it to her clients (eventhough she knew why there was a new offer)."

Possibly, but if that is true then the best thing you can do is to keep EVERYTHING in writing from this point on to protect yourself and stay tight to the contract. Better safe than sorry if you do have to deal with a breach on their end.
  • April 17 2012
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Profile picture for madeintheUSA
As fun as it sounds, I'm not going to contact the seller directly.  We have a fully executed contract and the sellers' agent told mine that she'd contact the sellers today and go over it with them (not sure why...they already signed the contract).  I've reviewed FL statues, and FL Statutes of Fraud.  If they decide to breach the contract, then damages awarded can be "specific performance" (they'd have to sell the house).  The difference in commission is $900.  I hardly think that's worth the trouble.  If the bank wants more $ for the home, we will cross that bridge when we get there.  I think the agent is just mad at herself because she failed to review the updated contract prior to forwarding it to her clients (eventhough she knew why there was a new offer).  Thanks for everyone's insight.  You've all been extremely helpful.
  • April 17 2012
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Profile picture for Thomas Trifon
If you have a fully executed revised contract, then you have a contract. If the seller did not sign the revised contract, you do not have a contract.

As far as contacting the seller to have them "fire" their agent. That is a great idea -tortious interference with a contract. Prepare yourself for a big lawsuit.

  • April 17 2012
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Mr. Emery's view that the listing agent has no duty to show an offer to the bank is surprising.

Once again...one more time...the offer is presented to the bank after the sellers accept the offer. It's at the discretion of the sellers to show the offer to the bank - not the agent.

Once again...one more time...the bank doesn't own the home. The bank doesn't decide as to whether a home is or isn't sold. They are there to provide third party approval of a short sale.

The listing agent DOES have a fiduciary responsibility...to their client. The bank is not their client.

And nowhere do I state that the listing agent (or their client) shouldn't show an offer to their bank. That is an incorrect statement.
  • April 16 2012
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If you were in Las Vegas (my market) I would recommend you get the seller's response in writing. This will assure you that your new offer was submitted to the seller for review. This still does not mean the seller has to agree to your new offer. They are well within their right to not accept your new terms and relist the property for sale contingent upon cancellation of the current escrow. Again, this is how I would handle it in Las Vegas. things may be different there in Florida.

Best Regards,
Robert Adams
Broker/Salesman
Rothwell Gornt Companies
[contact information deleted by Zillow moderator. Please see our Good Neighbor Policy for posting guidelines]
  • April 16 2012
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Profile picture for AncalaLot
Mrs. USF,

those things apparently are not happening only in FL, see my similar
experience:
http://www.zillow.com/advice-thread/Short-sale-buyer-entitled-to-have-written-counteroffers/436537/

I have the same feelings about the listing agent like you. And Mr. Emery's view that the listing agent has no duty to show an offer to the bank is surprising.
  • April 16 2012
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It's not a breach of contract by the AGENT as you're not under contract with the agent.

It's an alleged breach of contract between you and the SELLER.

It's an error on the part of the agent that they failed to see the price reduction (which isn't your problem - it's the sellers problem). The error was compounded when the sellers willingly signed an agreement which they failed to read.

Given the circumstances I don't see why the sellers won't present the offer to their bank. If the bank wants more money then the ball falls back into your court. It's possible that they have already been in contact with the bank and the bank has told them the bare minimum offer they would accept and anything else comes out of the sellers (or agents) pocket (which can cause the sellers to not want to agree to their contract).

I think you are giving too much credit to the agent in believing they have cooked up a side deal. I think at this point they're covering their behinds due to their major snafu. The commission on the additional 30-40k they could get from another buyer is not worth self destruction of a career.
  • April 16 2012
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Profile picture for madeintheUSA
The new contract was signed by us and seller.  They accepted it (which was why they signed it).  We have a signed contract to buy the house for X amount of dollars and the seller accepted it.  How is it not a breach of contract by the seller's agent if she decided she no longer wants to honor the contract?  Sellers shouldn't care since they are not getting any of the money anway.  Our agent has assured us that our offer is more than fair especially since we are not deducting the full amount to repair the house and the house was already priced a little higher than it should be.
  • April 16 2012
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Profile picture for madeintheUSA
The sellers signed the new contract that our agent gave to the listing agent who then forwarded it to the sellers...and they signed it with the new offer (the original offer was contingent on inspection).  We received the contract, signed by sellers.  However, for some reason the listing agent just noticed today that the price was dropped.  The LISTING agent is not okay with this.  This house has been on the market for 2 years because there were 4 liens on it (now there are two).  Listing agent didn't realize we dropped the price on our offer.  Her mistake.  In the last 2 hours I've been researching FL RE law and will file complaint, etc.  I'm going to assume she has someone who wants to buy the house and she wants to keep the $$$, she might even be receiving a little bonus $$$.  Fraud.  period.  There is no other reason why the listing agent would be doing this.  Also, the Florida contract states that "Seller's agreement not to accept other offers or contracts." We have a signed contract by the sellers.  Should I contact them and have them fire their listing agent?  Seriously.
  • April 16 2012
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Michael Emery gave you a good answer.

I am not clear if the bank approved the price and then you lowered the price or if you did inspections early and then lowered the offer and the agent did not submit it to the bank for approval...

Either way, you have no control...and yes they can do that, and no it is not unethical...they are rejecting your new offer. 

You currently have a contract with the seller at the terms stated in the contract...change the terms and you will be "out" and they can relist the property.

Eve
  • April 16 2012
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When you requested that the price of the home be reduced $30,000 you have reopened negotiations. The sellers have the right to refuse your amended offer which leaves you to either drop the request for a price reduction or the sellers can and will re list the property and request a mutual cancellation of the purchase agreement.

Does it matter that they didn't submit the offer to their bank? No. They're under no legal obligation to do so. The banks permission is a 'contingency' to the contract - just like your inspection was a contingency. The agents only fiduciary responsibility is to present the offer to their sellers. The bank is not the owner. The bank is not the seller.

Based on what you have presented, there appears to be nothing that is either unethical or breaches the contract.
  • April 16 2012
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Its really hard to answer your question without your contract in front of me. I would have to assume your realtor is doing what they can but if your having a problem with the selling agent you might want to contact a real estate attorney.
  • April 16 2012
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