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Old 07-31-2012, 11:30 PM
 
397 posts, read 493,010 times
Reputation: 210

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Quote:
Originally Posted by MikeJaquish View Post
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,[b] NOPE
Please refer to 7a in your link


"may be responsible for commission even if home doesn't sell, NOPE"

Refer to 7b(i)


"buyer defaults EM is split with LA, NOPE."

Refer to 11


"has option to exercise dual agency and does not need the sellers consent, NOPE"). [/quote]

Refer to 17. It does say it needs informed consent from all parties involved, but by signing this agreement you probably are providing "informed consent". We had a DA situation and they never asked for my informed consent (in writing).


"make the Hall of Fame batting 0 fer 4."

More like 3.5 / 4 (will concede .5 on the informed consent issue)

"needs an attorney, no matter how many agents are involved. Preferable an attorney with real estate experience"

Do you advise all your sellers and buyers to get an attorney?

 
Old 08-01-2012, 05:22 AM
 
Location: Cary, NC
31,699 posts, read 55,551,116 times
Reputation: 30280
Quote:
Originally Posted by RE Skeptic View Post
...

"needs an attorney, no matter how many agents are involved. Preferable an attorney with real estate experience"

Do you advise all your sellers and buyers to get an attorney?
I advise all clients to consult with an attorney when it appears to be necessary. I never tell someone not to see an attorney.
In your case, I strongly recommend you consult with an attorney due to your obvious misunderstanding of the standard agreement.

7a:
"Seller agrees to pay firm a total fee..."
The mention of another firm does not create a Buyers agent fee.

7bi:
When a ready, willing, and able buyer is procured, and the terms are agreeable to the seller, the house IS sold. Fee is earned. Section 7 clarifies to the seller those circumstances. If you breach, you pay. Not fair?
Yes, it is incumbent on the seller not to capriciously enter into a sales contract, but that caution merely encourages responsible adult behavior.

17d:
"______ ______ Seller authorizes the Firm to act as a dual agent, representing both the Seller and the buyer, subject to the terms and conditions set forth in Paragraph 17."
That looks like consent to me. Of course, 17d goes on to give the seller the choice to deny dual agency and require full representation. And the definition/discussion of dual agency in the agreement is concise yet thorough.
Also, the Working With Real Estate Agents disclosure cited in 1d2 thoroughly defines dual agency.
If you were not notified on the offer you received, that is not a forms issue, but an individual agent failing. Yes, none of us are perfect.

Now for #11.
My error.
FWIW, I have never faced this situation, and wouldn't care to be on the receiving end of forfeited EMD. Yet, how is it unfair to the seller in any way?

Last edited by MikeJaquish; 08-01-2012 at 06:47 AM..
 
Old 08-01-2012, 10:48 AM
 
397 posts, read 493,010 times
Reputation: 210
Mike,

7a:
"Seller agrees to pay firm a total fee..."
The mention of another firm does not create a Buyers agent fee.


Section 8 specifies the the BA commission. If there is no BA, the # paid to the LA includes what would have otherwise gone to the BA. That is what I meant by "BA commission goes to LA by default."

7bi:
"When a ready, willing, and able buyer is procured, and the terms are agreeable to the seller, the house IS sold. Fee is earned. Section 7 clarifies to the seller those circumstances. If you breach, you pay. Not fair? Yes, it is incumbent on the seller not to capriciously enter into a sales contract, but that caution merely encourages responsible adult behavior."

OK, so would you agree that my statement the seller"may be responsible for commission even if home doesn't sell" ?

17d:
"______ ______ Seller authorizes the Firm to act as a dual agent, representing both the Seller and the buyer, subject to the terms and conditions set forth in Paragraph 17."
That looks like consent to me. Of course, 17d goes on to give the seller the choice to deny dual agency and require full representation. And the definition/discussion of dual agency in the agreement is concise yet thorough.
Also, the Working With Real Estate Agents disclosure cited in 1d2 thoroughly defines dual agency.
If you were not notified on the offer you received, that is not a forms issue, but an individual agent failing. Yes, none of us are perfect.
"

Like I said, by signing the listing agreement the seller is technically consenting. I will concede that. However, the seller doesnt have much of a choice. The alternative is to refuse DA and eliminate any possible buyers from the Agency which can be a major disadvantage if seller if agency has large market share.

Now for #11.
My error.
FWIW, I have never faced this situation, and wouldn't care to be on the receiving end of forfeited EMD. Yet, how is it unfair to the seller in any way?


You apparently where not aware of this "gem". Just goes to show how even an experienced RA who signs listing agreements for a profession can have "misunderstandings of the standard agreement"


Just wanted to clarify things for the "innocent visitors to the forum" (whatever that means).
 
Old 08-01-2012, 11:11 AM
 
Location: Cary, NC
31,699 posts, read 55,551,116 times
Reputation: 30280
Quote:
Originally Posted by RE Skeptic View Post
Mike,

7a:
"Seller agrees to pay firm a total fee..."
The mention of another firm does not create a Buyers agent fee.

Section 8 specifies the the BA commission. If there is no BA, the # paid to the LA includes what would have otherwise gone to the BA. That is what I meant by "BA commission goes to LA by default."

7bi:
"When a ready, willing, and able buyer is procured, and the terms are agreeable to the seller, the house IS sold. Fee is earned. Section 7 clarifies to the seller those circumstances. If you breach, you pay. Not fair? Yes, it is incumbent on the seller not to capriciously enter into a sales contract, but that caution merely encourages responsible adult behavior."

OK, so would you agree that my statement the seller"may be responsible for commission even if home doesn't sell" ?

17d:
"______ ______ Seller authorizes the Firm to act as a dual agent, representing both the Seller and the buyer, subject to the terms and conditions set forth in Paragraph 17."
That looks like consent to me. Of course, 17d goes on to give the seller the choice to deny dual agency and require full representation. And the definition/discussion of dual agency in the agreement is concise yet thorough.
Also, the Working With Real Estate Agents disclosure cited in 1d2 thoroughly defines dual agency.
If you were not notified on the offer you received, that is not a forms issue, but an individual agent failing. Yes, none of us are perfect."

Like I said, by signing the listing agreement the seller is technically consenting. I will concede that. However, the seller doesnt have much of a choice. The alternative is to refuse DA and eliminate any possible buyers from the Agency which can be a major disadvantage if seller if agency has large market share.

Now for #11.
My error.
FWIW, I have never faced this situation, and wouldn't care to be on the receiving end of forfeited EMD. Yet, how is it unfair to the seller in any way?

You apparently where not aware of this "gem". Just goes to show how even an experienced RA who signs listing agreements for a profession can have "misunderstandings of the standard agreement"


Just wanted to clarify things for the "innocent visitors to the forum" (whatever that means).

The form certainly does not create buyers agency commission, although the parties may agree that the listing agent will cooperate and share the commission with a buyers agent. None of the choices in Section 8 are required.
How much clearer could it be?

The seller certainly has the choice to allow or disallow dual agency, and to benefit from the choice. And the agent has the right to choose to work with people or not work with people.
I once took a listing wherein the seller would not allow dual agency. It was a choice we both made.

Of course, victimhood entitlement mentality would say that the seller should have any latitude desired to strongarm anyone to bend to seller's will. I am OK that very few people enjoy such latitude. I think some level of civilized behavior contributes to some order in society. Such thought goes against egocentric pique and victim entitlement, but I'm all right with that.

Of course, I disagreed that seller breach of a contract means the house wasn't sold, per the terms. I said as much. Did I hide that?
Perfect support for the point that legal counsel is in order. It would be more straightforward than bitterly complaining that you didn't read your agreements and that is the agent's fault.


I probably knew that final "gem" was there, and probably ignored it as I don't really care for it. I appreciate your passive acceptance that such a provision is fair to both parties.

"Innocent parties?" We have a lot of people come through here with legitimate issues, who can be led astray by bogus arguments from anonymous posters. We get a lot of trolls here who are easily spotted by folks with experience, but not by everyone.
I don't mind taking a little time to expose claptrap so the first timers who come around have accurate information, and I stand behind the information I post. That integrity made it easy for me to mention that I overlook Section 11.
 
Old 08-01-2012, 11:44 AM
 
Location: Chicago
3,263 posts, read 4,530,063 times
Reputation: 3996
Quote:
Originally Posted by RE Skeptic View Post
17d:
"______ ______ Seller authorizes the Firm to act as a dual agent, representing both the Seller and the buyer, subject to the terms and conditions set forth in Paragraph 17."
That looks like consent to me. Of course, 17d goes on to give the seller the choice to deny dual agency and require full representation. And the definition/discussion of dual agency in the agreement is concise yet thorough.
Also, the Working With Real Estate Agents disclosure cited in 1d2 thoroughly defines dual agency.
If you were not notified on the offer you received, that is not a forms issue, but an individual agent failing. Yes, none of us are perfect.
"

Like I said, by signing the listing agreement the seller is technically consenting. I will concede that. However, the seller doesnt have much of a choice. The alternative is to refuse DA and eliminate any possible buyers from the Agency which can be a major disadvantage if seller if agency has large market share.
I refused to sign the dual agency disclosure when I listed my house with a large brokerage. The broker was fine with that. I told the agent that if a dual agency situation came up we could re-address it and he agreed that was the best course of action. It never came up. I also told him that if another agent at the same brokerage had a buyer for the house that in that scenario I would most likely agree to dual agency; however, I did not want our specific agent handling both sides. He agreed.
 
Old 08-01-2012, 12:19 PM
 
Location: Cary, NC
31,699 posts, read 55,551,116 times
Reputation: 30280
Quote:
Originally Posted by nikitakolata View Post
I refused to sign the dual agency disclosure when I listed my house with a large brokerage. The broker was fine with that. I told the agent that if a dual agency situation came up we could re-address it and he agreed that was the best course of action. It never came up. I also told him that if another agent at the same brokerage had a buyer for the house that in that scenario I would most likely agree to dual agency; however, I did not want our specific agent handling both sides. He agreed.
Sure.
However, when two agents are involved, the possibility of one side being favored by one of the agents is just as likely.
Some agents just cannot step into neutral territory when they have built a relationship with the client.

One sign would be if one agent refers to himself and the client as "We."
I.e., "We think this is a very reasonable request." That agent has stepped out of neutrality.

I don't do much dual agency at all, but often think I would be more comfortable, more able to see the whole "level playing field," if I was the only agent.
 
Old 08-01-2012, 02:29 PM
 
Location: Chicago
3,263 posts, read 4,530,063 times
Reputation: 3996
Quote:
Originally Posted by MikeJaquish View Post
Sure.
However, when two agents are involved, the possibility of one side being favored by one of the agents is just as likely.
Some agents just cannot step into neutral territory when they have built a relationship with the client.

One sign would be if one agent refers to himself and the client as "We."
I.e., "We think this is a very reasonable request." That agent has stepped out of neutrality.

I don't do much dual agency at all, but often think I would be more comfortable, more able to see the whole "level playing field," if I was the only agent.
I agree.

My only point is that no one is forced to sign that part of the contract, and many agents are willing to take a "wait and see" approach to dual agency. I don't think it is a huge detriment to a seller if they say that they would rather address dual agency if it happens than sign that part of the contract right away. I don't think too many brokerages would have an issue with that, either. Dual agency is not a frequent occurrence in my experience and isn't worth stressing about, especially if it bugs a seller.
 
Old 08-01-2012, 02:57 PM
 
Location: Cary, NC
31,699 posts, read 55,551,116 times
Reputation: 30280
Quote:
Originally Posted by nikitakolata View Post
I agree.

My only point is that no one is forced to sign that part of the contract, and many agents are willing to take a "wait and see" approach to dual agency. I don't think it is a huge detriment to a seller if they say that they would rather address dual agency if it happens than sign that part of the contract right away. I don't think too many brokerages would have an issue with that, either. Dual agency is not a frequent occurrence in my experience and isn't worth stressing about, especially if it bugs a seller.
Right.

With 7000 agents and 15000 listings in my area, dual agency is not the most common situation by a long shot.

OTOH, folks who disallow dual agency from the start may be shortchanging themselves.
Buyers may not get to see homes that fit, and sellers may be telling the listing agent to scrape leads off the sign out front.
 
Old 08-01-2012, 02:59 PM
 
Location: DFW - Coppell / Las Colinas
30,020 posts, read 34,685,876 times
Reputation: 36053
Quote:
Originally Posted by nikitakolata View Post
My only point is that no one is forced to sign that part of the contract, and many agents are willing to take a "wait and see" approach to dual agency. I don't think it is a huge detriment to a seller if they say that they would rather address dual agency if it happens than sign that part of the contract right away. I don't think too many brokerages would have an issue with that, either. Dual agency is not a frequent occurrence in my experience and isn't worth stressing about, especially if it bugs a seller.
Just to clarify... Dual agency can also exist when 2 agents from the same firm represents the Buyer & Seller. Our company has 32 offices and 1800 agents so the odds one of them might bring a buyer are fairly high.

In a large Metro area like DFW, I seldom represent both parties but in small towns it may be very common. There may be very few agents in Podunk Kansas and they will naturally handle both sides of a transaction.

So... normal is not always normal depending on the size of a city, the Brokerage and the amount of agents in a given area. It's a reason DA is practiced or allowed in real estate and it can be done correctly and fairly.

Last edited by Rakin; 08-01-2012 at 03:16 PM..
 
Old 08-01-2012, 03:02 PM
 
Location: Cary, NC
31,699 posts, read 55,551,116 times
Reputation: 30280
Quote:
Originally Posted by Rakin View Post
Just to clarify... Dual agency can also exist when 2 agents from the same firm represents the Buyer & Seller. Our company has 32 offices and 1800 agents so the odds one of them might bring a buyer are fairly high.

In a large Metro area like DFW, I seldom represent both parties but in small towns it may be very common. There may very few agents in Podunk Kansas and they will naturally handle both sides of a transaction.

So... normal is not always normal depending on the size of a city, the Brokerage and the amount of agents in a given area. It's a reason DA is practiced or allowed in real estate and it can be done correctly and fairly.
Good points.
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