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Old 07-31-2012, 01:57 PM
 
Location: DFW - Coppell / Las Colinas
30,043 posts, read 34,781,423 times
Reputation: 36121

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Quote:
Originally Posted by blazerj View Post
I'm not a lawyer, but his email is not direct enough to prove he is trying to make the seller break their contract with the seller's RE. Even if you disagree, wouldn't the seller's agent have to forward the offer to the buyer, as a part of their MLS duty?
The seller determines how they want offers presented. The agent could forward the offer as an attachment to the agents separate email or if the Seller would like they can be given the offer verbally.

Any other communication sent by a Buyers agent or the Buyer is not part of the contract. Sometimes it's a factor and many times it's not. The agent can discuss the Buyers email if the seller likes but under no contractual obligation to forward the email.

Most sellers and their agents have a decent enough relationship they will discuss anything sent their way that is a factor in selling the home. Keep in mind, many sellers do not want contact with a buyer and requires the agent to filter the communication.

 
Old 07-31-2012, 02:24 PM
 
Location: Central Texas
19,949 posts, read 36,566,197 times
Reputation: 21562
Quote:
Originally Posted by blazerj View Post
I'm not a lawyer, but his email is not direct enough to prove he is trying to make the seller break their contract with the seller's RE. Even if you disagree, wouldn't the seller's agent have to forward the offer to the buyer, as a part of their MLS duty?
I'm not a lawyer, either, though I've worked with them. The exact wording of his email would be important, but it's clear from everything he's posted on here that his insistence on his email being forwarded is so that the seller is absolutely sure to be informed that he won't have to pay the full commission that he agreed to with the listing agent (merrily making assumptions right and left about what that arrangement is, by the way), and the only way that can occur is if the seller changes the listing agreement.

If that were not the goal, what would be the point of being so insistent that the seller receive the email spelling that out? The goal, from all that's been said, is to convince the seller that they would somehow benefit from paying less of a commission and thus that savings would be passed on to the buyer in a lower sales price. Now, how exactly the seller is supposed to benefit by receiving less money in the amount of the buyer's agent's portion of the commission while not paying that out to the listing agent is unclear - sounds like a wash to me, but perhaps the seller isn't supposed to be all that great at math, either.
 
Old 07-31-2012, 02:25 PM
 
Location: Salem, OR
13,764 posts, read 31,728,546 times
Reputation: 12151
Quote:
Originally Posted by blazerj View Post
I'm not a lawyer, but his email is not direct enough to prove he is trying to make the seller break their contract with the seller's RE. Even if you disagree, wouldn't the seller's agent have to forward the offer to the buyer, as a part of their MLS duty?
Offer yes, email no. It isn't an MLS duty issue, it is state law.
 
Old 07-31-2012, 07:54 PM
 
397 posts, read 493,906 times
Reputation: 210
Quote:
Originally Posted by ocngypz View Post
For OP

What are your state's laws regarding Dual Agency??
Live in NC. Dont know the specifics, assume it is legal as it was mentioned as a possible scenario in my listing agreement and have met RAs who seem to have no reservations of dual agency.
 
Old 07-31-2012, 08:54 PM
 
397 posts, read 493,906 times
Reputation: 210
Quote:
Originally Posted by TexasHorseLady View Post
I'm not a lawyer, either, though I've worked with them. The exact wording of his email would be important, but it's clear from everything he's posted on here that his insistence on his email being forwarded is so that the seller is absolutely sure to be informed that he won't have to pay the full commission that he agreed to with the listing agent (merrily making assumptions right and left about what that arrangement is, by the way), and the only way that can occur is if the seller changes the listing agreement.

If that were not the goal, what would be the point of being so insistent that the seller receive the email spelling that out? The goal, from all that's been said, is to convince the seller that they would somehow benefit from paying less of a commission and thus that savings would be passed on to the buyer in a lower sales price. Now, how exactly the seller is supposed to benefit by receiving less money in the amount of the buyer's agent's portion of the commission while not paying that out to the listing agent is unclear - sounds like a wash to me, but perhaps the seller isn't supposed to be all that great at math, either.
TI...THL, are you serious? Its nice to know that you are an expert in TI based on the fact that you "worked" with a lawyer (probably in closings?). "I am not a doctor, but I play one on TV"

First of all, the seller can not change the listing agreement without the LA agreement. Only a RA who has a vested interest in scooping an additional 3% would argue that a seller who clarifies his unrepresented status is engaging in TI. This is a FAR stretch from TI, I never asked him or even suggested that he breach the contract.

In this era of electronic communication (bet you everyone sent more emails than calls today), it is interesting how some RAs discount an email. Seems to me it is more efficient and accurate than verbally conveying the offer to sellers...unless your desire is to filter info to your seller. It is presumptuous to assume that your seller would not want to see an email from a potential buyer, some of you talk about your sellers like they are little kids. I doubt many RAs specifically ask "hey, if a buyer sends me an email, do you want me to forward it to you? Then again, when there is an additional 24k on the line, many us may want to control the flow of information.

This asymmetry of communication between an agent and client is one of the more unsettling aspects of RE to me.

Finally, it is ironic that some of you argue that buyers need an agent to help them draft an offer, lest they get taken advantage of. Do you also spend time pointing out all of the aspects in your listing agreement (that was likely drafted by the states Real Estate Association's lawyers) that are weighted in the RA advantage (BA commission goes to LA by default, seller may be responsible for commission even if home doesn't sell, if buyer defaults EM is split with LA, agency has option to exercise dual agency and does not need the sellers consent). These are just a few of the gems that I found in my recent listing agreement and I am not a lawyer, "though I have worked with them"!
 
Old 07-31-2012, 09:01 PM
 
397 posts, read 493,906 times
Reputation: 210
Quote:
Originally Posted by Brandon Hoffman View Post
We already see you have at the very least questionable ethics.
How so?
 
Old 07-31-2012, 09:08 PM
 
4,635 posts, read 7,268,295 times
Reputation: 4759
Quote:
Originally Posted by RE Skeptic View Post
Live in NC. Dont know the specifics, assume it is legal as it was mentioned as a possible scenario in my listing agreement and have met RAs who seem to have no reservations of dual agency.
Dual agency has several different meanings. It can involve two agents - one as listing agent, the other as buyer's agent under one broker. I don't really have a problem with that. Especially in some markets where one agency dominates, it is a little difficult to avoid.

However, one individual operating for both seller and buyer.......not a snowball's chance in hades whether I was seller or buyer. And if I were still a realtor, no way would I represent both.

When agreeing to dual agency under one individual representing both parties, the seller and buyer are both waiving their rights to fidicuary responsibility from what otherwise would be have been their individual listing agent and buyer's agent.

Look every seller wants to make as much money as possible, every buyer wants to spend the least amount possible. That is a given. Being currently both a seller and a buyer (separate states), I will not waive my respective agents' fidicuary responsibilites to me.... the client.

It interesting to note that consumer advocates do not approve of Dual Agency representation at all.
 
Old 07-31-2012, 09:14 PM
 
Location: Central Texas
19,949 posts, read 36,566,197 times
Reputation: 21562
No, I did not work in real estate law as a legal assistant. It was plaintiff personal injury law, which meant a lot of discovery, a lot of researching the statutes (before they were on CD, never mind online, so I had to do it with books at that time), a lot of trial prep.

What you are encouraging the seller to do is to approach the other party to the listing agreement and put pressure on them to change that contract between the two of them, to which you are not a party, again, for your benefit. You may not like that it waddles, quacks, and swims like a duck, and you may be right; maybe it's a mud hen instead and would only be a duck if your attempt succeeded.

By the way, yes, I do, whether they want me to or not, sit down and go over every paragraph of the listing agreement with sellers before they sign it, and one of those paragraphs states that I'm not a lawyer and they should consult one if they have any questions regarding the agreement. I also most often leave a copy with them to read again before they sign it, as I break out in hives if someone signs something they haven't read. (Holdover from my legal assistant days.) Yes, it was promulgated by the Texas Real Estate Commission to be fair to BOTH parties. As was the buyer's rep agreement that we use.

I don't know what the listing agreement in your state says, but looking at the "gems" that you've found, I'd imagine they are things like appear in ours - if the listing agent does their job and there is a willing, ready and able buyer for the property and there is a contract and it falls through because the seller decides mid-contract that they just aren't in the mood to sell any more or some such, the listing agent, having done their job (and spent their money in the process of doing it), gets paid for it.

I've never known of that happening, but I can assure you that every single paragraph in ANY contract, real estate or not, exists because enough people did something unethical that it became obvious it was necessary to write into contracts protections against just those people. Anyone who isn't planning to do something unethical will most likely have no problem signing them once they've read them.

Here, the equivalent of dual agency requires both the seller and the buyer to agree or opt out (they have that choice) at the time of signing the original listing agreement or buyer's rep agreement, and if they do not opt out and an intermediary situation arises (dual agency elsewhere), all parties are notified in writing, signed off on, that that is now the case.

I should add that intermediary most often involves two agents in one broker's office, one that is representing the seller and one that is representing the buyer, though both the listing agreement and buyer's rep agreement are with the broker.
 
Old 07-31-2012, 09:56 PM
 
Location: Salem, OR
13,764 posts, read 31,728,546 times
Reputation: 12151
Quote:
Originally Posted by RE Skeptic View Post
It is presumptuous to assume that your seller would not want to see an email from a potential buyer, some of you talk about your sellers like they are little kids.
The flip side...

Some sellers want their hands to be held and have the agent filter things for them. Some sellers have 4 kids and can barely keep the house clean for showings and are relocating for work. Some sellers are moving to take care of a parent and are stressed out. Some sellers are getting a divorce and tension is high. It is presumptuous for you to assume a seller wants to see or has the mental energy to see communications from buyers.

Look, selling a house is a huge life event. I don't care why someone is selling, but it is a big transition and stressful. The best agents make judgement calls about what their clients can and can't handle. This is what makes them good because they have the ability to tailor information to their clients needs. Some clients, like you, want all the information. That's fine, but you have to respect that there are those that aren't in the mental state to deal with your communications. It is typically why they hire an agent. Handle everything so they don't have to deal with it.
 
Old 07-31-2012, 10:18 PM
 
Location: Cary, NC
31,763 posts, read 55,676,756 times
Reputation: 30394
Quote:
Originally Posted by RE Skeptic View Post
TI...THL, are you serious? Its nice to know that you are an expert in TI based on the fact that you "worked" with a lawyer (probably in closings?). "I am not a doctor, but I play one on TV"

First of all, the seller can not change the listing agreement without the LA agreement. Only a RA who has a vested interest in scooping an additional 3% would argue that a seller who clarifies his unrepresented status is engaging in TI. This is a FAR stretch from TI, I never asked him or even suggested that he breach the contract.

In this era of electronic communication (bet you everyone sent more emails than calls today), it is interesting how some RAs discount an email. Seems to me it is more efficient and accurate than verbally conveying the offer to sellers...unless your desire is to filter info to your seller. It is presumptuous to assume that your seller would not want to see an email from a potential buyer, some of you talk about your sellers like they are little kids. I doubt many RAs specifically ask "hey, if a buyer sends me an email, do you want me to forward it to you? Then again, when there is an additional 24k on the line, many us may want to control the flow of information.

This asymmetry of communication between an agent and client is one of the more unsettling aspects of RE to me.

Finally, it is ironic that some of you argue that buyers need an agent to help them draft an offer, lest they get taken advantage of. Do you also spend time pointing out all of the aspects in your listing agreement (that was likely drafted by the states Real Estate Association's lawyers) that are weighted in the RA advantage (BA commission goes to LA by default, seller may be responsible for commission even if home doesn't sell, if buyer defaults EM is split with LA, agency has option to exercise dual agency and does not need the sellers consent). These are just a few of the gems that I found in my recent listing agreement and I am not a lawyer, "though I have worked with them"!

The last paragraph above in no way represents the NCAR Exclusive Right to Sell Agreement.

http://www.ncrealtors.org/uploads/sample-101.pdf

I really don't care about the self-satisfying bizarre concepts, as much as wanting to point out to innocent visitors to the forum that the claims raised about the standard agreement are nearly without exception inaccurate.

"(BA commission goes to LA by default, NOPE. seller may be responsible for commission even if home doesn't sell, NOPE if buyer defaults EM is split with LA, NOPE. agency has option to exercise dual agency and does not need the sellers consent, NOPE).
Won't make the Hall of Fame batting 0 fer 4.
OP needs an attorney, no matter how many agents are involved. Preferable an attorney with real estate experience.
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