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Old 01-07-2009, 01:54 PM
 
2 posts, read 7,383 times
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I wanted to get some advice here, if any one can answer my question. My husband and I were interacting with an agent via email, back and forth about certain properties we may be interested in purchasing. There was never any express agreement that this person would be our agent when it came time for us to purchase a house. As it turned out, they could do for us the things we needed done. We contacted another agent, who went above and beyond to provide us with the information we needed, as we are out of state.
Now the first agent states that our emails constitute some sort of Implied contract that we would use them as our agent once we decided to purchase a home. We still have not purchased a home, however they are already saying they will sue us for 3% of the price of whatever home that we buy, as that is the commission they would have recieved had we used their services. Now I am not agent and not entirely familiar with the process in AZ, but I'm pretty sure that since there is no signed contract expressly stating our relationship, that we don't have any kind of contractual agreement with this agent to use her services. Of course based on her threats, we wouldn't want to use her now anyway. Does any one know the law on Implied contract between buyer and agent in the state of Arizona?
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Old 01-07-2009, 02:04 PM
 
Location: SW Missouri
14,851 posts, read 17,682,962 times
Reputation: 18973
Quote:
Originally Posted by NYDLC View Post
I wanted to get some advice here, if any one can answer my question. My husband and I were interacting with an agent via email, back and forth about certain properties we may be interested in purchasing. There was never any express agreement that this person would be our agent when it came time for us to purchase a house. As it turned out, they could do for us the things we needed done. We contacted another agent, who went above and beyond to provide us with the information we needed, as we are out of state.
Now the first agent states that our emails constitute some sort of Implied contract that we would use them as our agent once we decided to purchase a home. We still have not purchased a home, however they are already saying they will sue us for 3% of the price of whatever home that we buy, as that is the commission they would have recieved had we used their services. Now I am not agent and not entirely familiar with the process in AZ, but I'm pretty sure that since there is no signed contract expressly stating our relationship, that we don't have any kind of contractual agreement with this agent to use her services. Of course based on her threats, we wouldn't want to use her now anyway. Does any one know the law on Implied contract between buyer and agent in the state of Arizona?
I do not know the laws pertaining to Arizona. However, as a Realtor I can tell you that in Missouri, nothing is enforceable unless it is in writing. It is called the Statute of Frauds. This is not to say that the person you talk about could not sue you (anybody can sue anybody for anything), but he would have to prove that your actions constituted a contractual agreement, and I would think that it would really, really tough.

Usually, when people threaten to sue, it is an act of intimidation designed to motivate you to "settle" rather than deal with the expense of representation. Nine times out of ten, if you say "go ahead and sue me" they will not do it, because it is costly for them as well, and unless they have an air-tight case, they are not going to win.

20yrsinBranson
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Old 01-07-2009, 02:38 PM
 
Location: Raleigh, NC
998 posts, read 3,449,717 times
Reputation: 601
I agree with Branson. Most likely they are trying to use scare tactics (really makes you want to use them even more, right?). I wouldn't loose any sleep over it.
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Old 01-07-2009, 03:01 PM
 
Location: Salem, OR
10,927 posts, read 18,576,045 times
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I could have an agency relationship with everyone in town, show them homes, and write up offers and not get paid. The getting paid part is a contractual agreement between two parties. When an agent puts a listing on the MLS that is a contractual agreement between the two agents. You have no obligation to pay them any money unless you agreed to do so in writing. You may have an implied agency relationship, but agency relationship has nothing to do with getting paid.

The agent can "sue" you for 3% because you don't have to have a real case to file, but that would make no sense based on what you have said here. If they feel they have a procuring cause issue (meaning they found a buyer for a house) that issue is with the other real estate agent and NOT with you.

If you did not agree to pay them any monetary amount, then I would run away from this agent as fast as you can. If they continue to tell you that they will sue you, call their principal broker (ie their supervisor) and talk with them about it.
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Old 01-07-2009, 04:06 PM
 
Location: Raleigh
1,518 posts, read 3,809,264 times
Reputation: 755
I second this comment. You have nothing in writing. I can talk all I want to 50 different agents and until I sign a contract I am not tied to any one of them.

Good Luck and happy house hunting
Debbie



Quote:
Originally Posted by Janecj View Post
I agree with Branson. Most likely they are trying to use scare tactics (really makes you want to use them even more, right?). I wouldn't loose any sleep over it.
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Old 01-07-2009, 08:50 PM
 
Location: DFW - Coppell / Las Colinas
18,335 posts, read 17,056,130 times
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I would also let him know that if he continued to harass you you are going to contact his broker or file a complaint with the local or state real estate commssion.

You owe him nothing.
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Old 01-07-2009, 10:52 PM
 
Location: Montana
2,203 posts, read 6,122,890 times
Reputation: 1027
Quote:
Originally Posted by NYDLC View Post
I wanted to get some advice here, if any one can answer my question. My husband and I were interacting with an agent via email, back and forth about certain properties we may be interested in purchasing. There was never any express agreement that this person would be our agent when it came time for us to purchase a house. As it turned out, they could do for us the things we needed done. We contacted another agent, who went above and beyond to provide us with the information we needed, as we are out of state.
Now the first agent states that our emails constitute some sort of Implied contract that we would use them as our agent once we decided to purchase a home. We still have not purchased a home, however they are already saying they will sue us for 3% of the price of whatever home that we buy, as that is the commission they would have recieved had we used their services. Now I am not agent and not entirely familiar with the process in AZ, but I'm pretty sure that since there is no signed contract expressly stating our relationship, that we don't have any kind of contractual agreement with this agent to use her services. Of course based on her threats, we wouldn't want to use her now anyway. Does any one know the law on Implied contract between buyer and agent in the state of Arizona?

I am an agent in AZ. This agent is sadly misinformed and needs to take a continuing ed course on the Code of Ethics. While there can be an "implied agency" relationship, there is no such thing as an "implied contract". Unless you've signed a Buyers Broker Agreement, there is no way she can sue you for a commission. The exception to this might be that she is "procuring cause" if you purchase a property that she showed you and represented you during negotiations. Just emailing you a listing that you decide to purchase at some later date after you've looked at other properties with another agent would generally not be considered "procuring cause". As a matter of fact, that type of thing happens all the time.

I'm of the firm belief that folks have every right to interview agents, and even work with them briefly on a trial basis, before they decide to commit to signing a Buyers Broker Agreement. And even then, if the client is not happy with the agent's performance, then they have every right to cancel that contract.

Of course, it's always best to be upfront, and decide fairly soon which agent you want to work with exclusively. The "losing" agent better be able to suck it up and move on with life. Otherwise I'd say they're in the wrong business.

The best to you in finding an agent that you're comfortable with and in finding the property that suits your needs.
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Old 01-08-2009, 05:36 AM
Status: "Apple Pie!" (set 6 days ago)
 
Location: Cary, NC
19,560 posts, read 30,982,095 times
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Doesn't the concept of "implied agency" really place an onus and responsibility on the agent moreso than offering some sleazy contractual/commission benefit?
I'm thinking of situations where the recipient of advice suffers damages due to following the advice given casually by an agent.

It is one reason we are not supposed to distribute blank standard forms to people who may not be qualified to use them. The liability that comes with giving forms stems from the enabling of a member of the public whom we serve to self-inflict damages.
And "implied agency" comes to mind when I see scattershot advice cavalierly given to folks on internet forums when the agent does not have a clue of the details, or tangible agency and fiduciary responsibility for the consequences of the advice given.
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Old 01-08-2009, 10:06 AM
 
Location: Montana
2,203 posts, read 6,122,890 times
Reputation: 1027
Quote:
Originally Posted by MikeJaquish View Post
Doesn't the concept of "implied agency" really place an onus and responsibility on the agent moreso than offering some sleazy contractual/commission benefit?
I'm thinking of situations where the recipient of advice suffers damages due to following the advice given casually by an agent.

It is one reason we are not supposed to distribute blank standard forms to people who may not be qualified to use them. The liability that comes with giving forms stems from the enabling of a member of the public whom we serve to self-inflict damages.
And "implied agency" comes to mind when I see scattershot advice cavalierly given to folks on internet forums when the agent does not have a clue of the details, or tangible agency and fiduciary responsibility for the consequences of the advice given.
Good point, and one I didn't mention. "Implied agency" is something that is created by the agent, not the customer. There are certain duties that an agent owes to either a "customer" or a "client", such as honesty and disclosure. However, an agent has a fiduciary relationship with a client that he does not have with a customer. Sometimes that relationship is created through a contract, i.e. Buyers Broker Agreement, and sometimes it is "implied" when an agent begins treating a "customer" as a "client" by providing services/advice which create that fiduciary relationship.

While many here in AZ do not specifically use BBA's (it's just not that common, at least where I live, and I must say I sometimes see them used to "hold a customer hostage"), there are many good agents that enter into that fiduciary "implied" agency relationship. It is really the agent that is taking the risk at that point, because the customer/client has no binding contract with the agent to use that agent exclusively. And I contend, even with a BBA, that contract can be severed by failure of either party to perform.

This agent (original agent of the OP) obviously has twisted things around and is intimidating these customers into some sort of "implied contract" (never heard of that) that she's contending they've created. Uh-huh, doesn't happen that way. If she began treating them as her "clients" (rather than just "customers"), then that was her decision and if she wanted to be absolutely certain she retained them as her clients, then she needed to get a BBA signed. Otherwise they have no responsibility to her whatsoever.

Of course, as an agent, you always hope that the buyers you work with will be as loyal to you as you are to them. However, agents must never take their customers/clients for granted, and need to provide them the highest level of service depending on the agency relationship they have with them. It's just like any other professional service - if the customer/client isn't happy with the service, they can "fire" them and find somebody else.
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Old 01-08-2009, 11:35 AM
 
Location: Salem, OR
10,927 posts, read 18,576,045 times
Reputation: 6854
Quote:
Originally Posted by MikeJaquish View Post
And "implied agency" comes to mind when I see scattershot advice cavalierly given to folks on internet forums when the agent does not have a clue of the details, or tangible agency and fiduciary responsibility for the consequences of the advice given.
I think it is only a matter of time before a lawsuit arises out of internet forum "advice."
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