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Roger
Roger, Lawyer
Category: Real Estate Law
Satisfied Customers: 31021
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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If I had an offer on my home while I was under contract with

Customer Question

If I had an offer on my home while I was under contract with an agent, I countered, and the interested party walked away. Then the contract with the realtor is up and I put my home on the market for sale "By Owner." The original offeree contacted me when they saw the new sign and wants to make a deal but, there is a clause in my contract with my previous agency stating that they entitled to 2.5% to the agent and 2.5% to the broker if sold to anyone that was in contact with the agent during the original contract. I am wondering since I am now the "agent" if this would make that clause void? I have also changed the price of the home as well which is a change to the contract which I would think that would make the contract void as well.
Submitted: 7 months ago.
Category: Real Estate Law
Expert:  Roger replied 7 months ago.
Hi - my name is ***** ***** I'll be glad to assist. If the contract provides that your ex-realtor is entitled to a percentage of the sale proceeds if someone the ex-relator brought to you ends up buying the property after the contract expires, then you'd be bound by that provision and the ex-realtor would be entitled to enforce it.
Customer: replied 7 months ago.
Even if the price of the home changes and the price of the offer is different? It just seems as though it would make this contract null and void with the different sale amounts on offers and also on the price of the home?
Expert:  Roger replied 7 months ago.
Unless the contract has those qualifiers in it --- that the provision is only good if the sale price is the same as the listing --- then the different sale price isn't going to void the part of the agreement.
Customer: replied 7 months ago.
The person that is making the offer came through the house during an open house and used a different broker than mine if that changes the game at all?
Expert:  Roger replied 7 months ago.
All depends on what the provision says......and if it simply says if the buyer was "in contact" with your former agent, that's pretty broad.....and you can bet that the ex-realtor is going to want the stated commission.
Customer: replied 7 months ago.
It just says "property has been shown" which does an open house count as a showing?
Customer: replied 7 months ago.
As people come and go at their own free will not by appointment.
Expert:  Roger replied 7 months ago.
I can't say how a court would interpret that, but if the person looked at the property while your ex-realtor had the contract, it's likely that a court would find that as qualifying.....as any other interpretation would really be in semantics.
Expert:  Roger replied 7 months ago.
But, you can refuse the ex-realtor if the commission is sought and see if he/she is willing to sue to collect the claimed entitlement.
Customer: replied 7 months ago.
Considering the cost of the property I would assume she would be willing to go to court. But, It just appears as though there has to be a way around this verbiage.
Expert:  Roger replied 7 months ago.
Contracts are interpreted under the "4 corners rule", which means if a contract is clear and unambiguous, then it is interpreted based on the terms of the agreement and no outside/extrinsic evidence is allowed to challenge the document.
Expert:  Roger replied 7 months ago.
But, if the language is ambiguous, you can ask the court to interpret the document based on the terms and also any other evidence that could help in interpreting the agreement.
Expert:  Roger replied 7 months ago.
So, you can challenge this or any other contract term, but if the court finds the provision clear and unambiguous, then it's going to be upheld and enforceable. So, if you want to challenge the ex-realtor's entitlement, you'll need to establish proof that the provision doesn't mean what it appears to say or that the term is ambiguous and unenforceable based on extrinsic evidence of some kind.
Customer: replied 7 months ago.
Unfourtnally you have taught me everything my contract law professor taught me... I was hoping you might have known a slight of hand, or just simply more than what I was taught about these type of basic contracts but I think this Legal Zoom contract might cost me 60k or so. But, thanks for the insight.
Expert:  Roger replied 7 months ago.
Contracts are written to bind parties, not to create loopholes.....despite popular culture that seems to promote such.
Expert:  Roger replied 7 months ago.
So, the provision is going to be enforceable and bind you unless there's proof in the contract terms that would make it unenforceable.
Customer: replied 7 months ago.
I know, If this were some crazy game of politics I would have a million of them right but, I don't so I can't.
Customer: replied 7 months ago.
Thank you for you help. Have a great rest of your night.
Expert:  Roger replied 7 months ago.
HA! Thank goodness contracts aren't as complicated as politics and politicians! I'm a construction litigation attorney, and I spend most of my days reading contracts and sub-contracts, and loopholes aren't very prevalent, and the contracts/sub-contracts are always going to favor the party that wrote it.....so you can bet that the terms have been vetted to favor your ex-realtor.
Expert:  Roger replied 7 months ago.
If you need anything further, please let me know and good luck!

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