Hmmm. What are the rules? Can you counter above list?

[Lacerta]

I will agree that many (most?) sections of the seller's representation contracts are biased to protect the agents. What do you expect? They are written by Real Estate people, so of course that is going to be the case. When you sign an agreement with the cell phone people, it is biased toward the cell phone company. When you sign an agreement with the cable company, it is biased toward the cable company. Its not the EVIL realtors trying to trick you, its just the nature of pre-prepared contracts.

However, AW, your arguments all sound like they are coming from the far extreme to the other side. You sound like you want every single clause to be totally to the benefit of the seller. In that case, the seller should write up a separate contract that they have their agent sign. Check on the legalities for individual states, but in Idaho, anyone can draft a legal contract if they are a party to the contract. (If they aren't, then it becomes practicing law without a license, and you don't want that)

You sign theirs subject to yours and have them sign yours, stating your expectations and penalties/recourse if they are not met, subject to theirs.

There you go. Now the buyer is better protected.

Agents aren't going to agree to represent you without you signing their form for several reasons. They get audited, and get fined if they don't have the paperwork to back up their representation. Their insurance can refuse to cover them if they don't have it. And, back to the money issue, they have no way to prove you agreed to pay them for services rendered without it. HOWEVER, if you come prepared with a contract for them, with terms that make sense, you then are prepared to negotiate.



And no, LC, I am not an agent. I have, however, worked a desk in a real estate office for 8 years. My parents have both been agents, builders and property managers for nearly 20 years. I've picked a few things up along the way.

[Austin-Willy]

Originally Posted by Silverfall

I didn't get liquidated damages from my stock broker for my stocks going down in a declining stock market.

I like that comparison. How much does your stock broker get if you put in an order to buy or sell stock and then cancel the order before the transaction closes? Mine doesn't get a transaction fee. Just like my agent doesn't get paid unless the transaction closes.

Originally Posted by Silverfall

If people don't take the time to interview several agents, actually read the listing agreement, and negotiate terms from the start, at some point, they have to be responsible for their own actions.

Why does this not apply to an agent who does not interview a seller well enough to know that the seller is serious and will go through with the sale?

Originally Posted by Silverfall

I had a doctor that I no longer have because I would wait a dang hour in the waiting room, even when I had an 8:00 appointment. It threw off my day and I had to reschedule appointments. Who knows maybe I lost a client because I had to cancel a following appointment. I didn't get liquidated damages.

BUT I could just stop my relationship and move on to a more effective stock broker and doctor...which I did.

Can't the agent just stop the relationship with the seller if the seller breaches? I thought this all started with an agent wanting to get a commission without closing the sale.

[Austin-Willy]

Originally Posted by Lacerta

I will agree that many (most?) sections of the seller's representation contracts are biased to protect the agents. What do you expect? They are written by Real Estate people, so of course that is going to be the case. When you sign an agreement with the cell phone people, it is biased toward the cell phone company. When you sign an agreement with the cable company, it is biased toward the cable company. Its not the EVIL realtors trying to trick you, its just the nature of pre-prepared contracts.

However, AW, your arguments all sound like they are coming from the far extreme to the other side. You sound like you want every single clause to be totally to the benefit of the seller. In that case, the seller should write up a separate contract that they have their agent sign. Check on the legalities for individual states, but in Idaho, anyone can draft a legal contract if they are a party to the contract. (If they aren't, then it becomes practicing law without a license, and you don't want that)

You sign theirs subject to yours and have them sign yours, stating your expectations and penalties/recourse if they are not met, subject to theirs.

There you go. Now the buyer is better protected.

Agents aren't going to agree to represent you without you signing their form for several reasons. They get audited, and get fined if they don't have the paperwork to back up their representation. Their insurance can refuse to cover them if they don't have it. And, back to the money issue, they have no way to prove you agreed to pay them for services rendered without it. HOWEVER, if you come prepared with a contract for them, with terms that make sense, you then are prepared to negotiate.

What do you think I've been advocating? It's not just a moan and groan over agents being evil. It is an attempt to educate people who go into the relationship with their eyes closed.

The thing is, virtually every agent I've seen in action appears to be trying to convince their client that they are both on the same side - their interests are aligned, etc. When you do that and then you have an overbearing rep agreement, it is sleazy.

And your comment that my arguments appear to be extreme... you've been around (on this website, and in life it sounds) long enough to know that if you don't expect the unexpected, you have no one to blame when you get blindsided. Do you think that the listing agreement is so broad by accident?

[Silverfall]

Originally Posted by Austin-Willy

I like that comparison. How much does your stock broker get if you put in an order to buy or sell stock and then cancel the order before the transaction closes? Mine doesn't get a transaction fee. Just like my agent doesn't get paid unless the transaction closes.

I think this is a little bit different because we are talking about insanely short time frames with a stock transaction. You give the order to sell, and if you revoke it, the stock broker has not spent months on the order.

Originally Posted by Austin-Willy

Why does this not apply to an agent who does not interview a seller well enough to know that the seller is serious and will go through with the sale?

It does. I don't get agents that take sellers that aren't motivated. If an agent wants to take the risk and hold the listing for 6 months for people that want to "test" the market, then they can't complain when they don't get paid, or the seller doesn't want to drop the price. They knew what they were getting.

Originally Posted by Austin-Willy

Can't the agent just stop the relationship with the seller if the seller breaches? I thought this all started with an agent wanting to get a commission without closing the sale.

Yes, the agent can stop the relationship if the seller breeches. Therein lies the rub...the agent can "fire" a client for a breech, but a client can't fire an agent for a breech.

When I was a rookie agent I had another agent threaten to file a complaint against me with the MLS board because they brought my seller a full price offer and he rejected it. Terms are important too, which is why the "ready, willing, and able buyer" aspect of things is very difficult to win. My MLS only says what type of financing they are willing to take. It doesn't list out all of the other terms.

The conversation started about buyer's agents seeking payment from the listing agent for a ready, willing and able buyer. If a buyer agent prevailed in their complaint against the listing agent, then the listing agent would have to deal with trying to get money from the seller.

[Silverfall]

Originally Posted by Austin-Willy

It's not just a moan and groan over agents being evil.

More of a bring them to their knees kinda thing

Originally Posted by Austin-Willy

The thing is, virtually every agent I've seen in action appears to be trying to convince their client that they are both on the same side - their interests are aligned, etc.

The owners/principal brokers set the terms of the listing agreement, so unless all agents want to do solo, then that means sometimes using an agreement they might not be too excited about. I still think that good agents often release clients that want to be released without too much fuss, even if it is not in the contract.

[Austin-Willy]

Originally Posted by Silverfall

I think this is a little bit different because we are talking about insanely short time frames with a stock transaction. You give the order to sell, and if you revoke it, the stock broker has not spent months on the order.

You're right, it's very different with a stock broker. However, there are lots of other types of salespeople who work on clients for months while being exposed the whole time to the risk of not getting paid if they don't close. But it sounds like we probably don't disagree too much.

Originally Posted by Silverfall

It does. I don't get agents that take sellers that aren't motivated. If an agent wants to take the risk and hold the listing for 6 months for people that want to "test" the market, then they can't complain when they don't get paid, or the seller doesn't want to drop the price. They knew what they were getting.

That's all I'm really saying. There should not be a windfall for the agent if the agent mis-assesses the seller, while at the same time the seller gets nothing if the seller mis-assesses the agent.

Originally Posted by Silverfall

Yes, the agent can stop the relationship if the seller breeches. Therein lies the rub...the agent can "fire" a client for a breech, but a client can't fire an agent for a breech.

Right. Above and beyond the question of damages, this is an even bigger issue. I was thinking of this when you first mentioned the stock broker. The exclusivity demanded by RE agents is pretty unusual in the sales world, and then to be in a position where you have no legs to stand on in enforcing any kind of standards against the agent... it's usually a non-issue, but if it does become an issue the customer finds that they are not playing on a level playing field.

Originally Posted by Silverfall

When I was a rookie agent I had another agent threaten to file a complaint against me with the MLS board because they brought my seller a full price offer and he rejected it. Terms are important too, which is why the "ready, willing, and able buyer" aspect of things is very difficult to win. My MLS only says what type of financing they are willing to take. It doesn't list out all of the other terms.

I expect that you are right on the money here. I imagine that it's much more likely that the exclusivity and inability to enforce any kind of standards against the agent cuts against sellers more often than the risk of an agent claiming (and having a good case) that they earned a commission for a sale that doesn't close, even with commission-entitlement language that is overly broad.

[Austin-Willy]

Originally Posted by Silverfall

More of a bring them to their knees kinda thing

For some reason, I don't think I have the power over agents that is implied.

Originally Posted by Silverfall

The owners/principal brokers set the terms of the listing agreement, so unless all agents want to do solo, then that means sometimes using an agreement they might not be too excited about. I still think that good agents often release clients that want to be released without too much fuss, even if it is not in the contract.

Yes, I'm being imprecise when I say "agents," when it's really the brokers of course. I remember my first rodeo, all of the issues we're talking about were kind of swept under the rug when my agent assured me that he'd let me out of the agreement for any or no reason if we just weren't working out. I put my faith in him and didn't mark up the rep agreement, and ultimately came to be very comfortable with these risks because I could tell he was a man of his word. And he got my repeat business, for a number of reasons. But I hate to think of someone like my mom getting locked into such an agreement with an agent who is less honorable. It would be better from a consumer protection viewpoint to just make the rep agreements more fair and not have to rely on the honor of your agent.

[Jean Moran]

I am selling my own home as a fsbo, I am a retired broker maintaining my license in north carolina.
I dropped the price of my home to see if its the price or just the slow market causing it to not sell.
now I decided that I lowered it too much, if I get a full price offer before I can change do I have to take it?

[2bindenver]

Change the price where?