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Richard - Bizlaw
Richard - Bizlaw, Attorney
Category: Legal
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Experience:  30 years experience corporate, litigation, international
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As a follow up to this. While there was never a sales contract

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As a follow up to this. While there was never a sales contract signed by buyer and myself, my agent (the seller's agent) and I did have a signed Exclusive Right to Sell Listing Agreement (we both signed, as did my ex, who was co-owner of the property). that agreement is the ubiquitous clause relating to commissions being due seller's agent if he produced a buyer "ready, willing and able" to purchase the property "at terms that exist now or at a point in the future" etc. I do not have it in front of me, but can check later if necessary. My question is: I believe the key term is at the terms/price that exists now (in the listing agreement) and therefor if an offer is made that is NOT the same as in the listing agreement, then at that moment a commission is NOT due the seller's agent. And if I make a counter to their initial (unsatisfactory) offer...then the only point at which it might be earned is if they accept my counter. BUT I am assuming that verbal exchanges to this effect are not enough but that a SIGNED addendum to the Sales Contract (as well as a signed sales contract) would be necessary. I wrote a formal letter withdrawing my counter offer the morning after my counter was verbally share between my (seller's agent) and their (buyer's) agent. My realtor indicated they delivered it to the buyer's agent, returned their earnest money, etc. etc. and that was that. So in THIS there any way my Realtor (seller's agent) could demand commission?
Submitted: 6 years ago.
Category: Legal
Expert:  Richard - Bizlaw replied 6 years ago.

bizlaw :

Did the buyer accept your counter offer or was your counter offer withdrawn before the offer was accepted?


As far as paper goes...there was no signed acceptance of my counter. In fact, my counter (addendum to the sales contract form) was being filled out by me, but was not yet signed by me, my ex, or delivered to my Relator. My relator asked me over the phone in the evening if I would give him (and his wife, the broker) permission to proceed with verbal negotiations with buyer/buyer's agent and allow paper work and signatures to be completed in parallel or right afterward. I agreed to that aspect. They called and shared terms of my counter. I assume it was with their realtor (buyer's agent). I received an email back from my agent saying that my counter was shared and that they (buyer's agent/buyers) would get back with us in the morning. My agent did not indicate in the email that they accepted. Nothing near that. They repeated their awarness that the buyer had kids and wanted to get an early possession as possible to settle before school year started (my counter had a much later time of possession/closing date) but, again, they did not say one way or the other. Only that we'd hear back in the morning. We assumed they would make another / revised offer. It was maybe 30 minutes or so that my ex and I agreed to extend time (in our divorce agreement) for me to remain in the house. I sent email to my agent asking to withdraw my counter and remove house from market. They did not read it until the next morning. (I assume). I got call from my relator saying I needed to put withdrawal in writing, have me and my ex sign it, and also indicate removal of house from the market. He said that was necessary to get to them before the (possibly) accepted (called? emailed? whatever) my counter. We signed, scanned and emailed the letter. My agent confirmed at 1:30 p.m. that the letter of withdrawal was delivered, along with return of earnest money, to the buyer's agent. House was removed from MLS and signs picked up from the yard (of my home). They never shared with me (even after I asked) if they contacted the buyer's agent in person, what the reaction was, etc. etc. I asked twice and my agent (in email, he did not return my calls when I tried to reach him) repeated the same lines...with the final one being "we have not heard from the buyer's agent and don't expect to. We've done all that is in out power to do." And that was all they would share. SO....long answer is....I assume they did NOT accept the counter offer in any fashion but I do not know for a fact if, say, they had called their agent late at night and said "yes...let's do teh paper work in the morning..." or, in addition to that, perhaps the agent called my agent and left a voice mail at their office. My agent did not SAY any of that happened, so I am going on the assumption it didn't. Is this enough of an answer to what seemed like a simple question? just thought I should cover all the bases as I know them.

bizlaw :

Unless there was an agreement on a sale price, the agent has not earned a commission. I would also advise you in the future that you listing agreement state that the agent does not earn a commission until the sale closes. I have never allowed a client sign the type of listing agreement commission language you did just so you do not have the type of issue you are concerned about.

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ok that is what I thought...but in doing my own research on case law in this area....and suits by agents for commissions even when sale has not taken place...I came to the same conclusion on best terms to accept. My guard was down as this Realtor has worked with me on two other houses....but the way he disengaged with my late pull out made me wonder if I was at I think now I was one verbally communicated "accept" away from having this go the wrong way! Thanks for the response.

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