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Old 08-05-2012, 08:47 AM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,670,408 times
Reputation: 3809

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Quote:
Originally Posted by RE Skeptic
We are putting an offer in and have no agent representation. We emailed a scanned, signed contract to the listing agent. In the email, we highlighted the offer (price, etc) and the fact that we do not have a buyers agent thus raising the potential for a 3% reduction in the sellers commission payout. We understand that the seller has already signed a listing agreement with the LA and is responsible for this, independent of whether we bring an agent to the table. However, we also recognize that that the contact between the seller and seller agent could be amended, if both parties agree, and wanted to make sure that the sellers understood this.

We requested that the listing agent forward this email to the sellers. It is our understanding that all offers must be presented to the sellers. Is this true, even if it puts the listing agent in the uncomfortable position of trying to defend his "extra" 3% commission? ...
According to your original post, the intent of your cover letter was to encourage the seller to re-negotiate the listing contract.

Quote:
Originally Posted by RE Skeptic
Could the agent "filter" the offer and not forward it to the sellers on the basis that is interferes with a contract between him and the sellers?
The agent cannot filter the "offer". However, the email is a personal communication from you to the listing agent. That email is not a part of the offer, and it is entirely up to the agent whether or not to forward the email.

The fact that you are unrepresented will be well known to the seller. I would think that the standard contract in your area has a section for the buyers agent to be identified. That's where the title company initially obtains the contact information for the buyers agent, which they need in order to communicate with the agent.

At any rate, the listing agent has no reason to hide the fact that the buyer is unrepresented.

 
Old 08-05-2012, 08:54 AM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,670,408 times
Reputation: 3809
RE Skeptic, on July 28 you posted that you submitted this offer. It's been 8 days now.

You have received answers to your original post, so there is really nothing more to discuss on that subject.

In order to give us a little more insight, how about providing some information:
  • What was the list price?
  • What was your offer amount?
  • Did the listing agent respond to your email?
  • Did s/he forward your email to the seller, or did she respond that she wouldn't do that?
  • Did the seller accept, reject, or counter your offer?
  • If they countered, what was the price, and did you counter?
  • Has the discussion of commission come up during any of the counters, if any?

Keep us informed.
 
Old 08-05-2012, 09:26 AM
 
397 posts, read 491,297 times
Reputation: 210
Quote:
Originally Posted by Captain Bill View Post
RE Skeptic, on July 28 you posted that you submitted this offer. It's been 8 days now.

You have received answers to your original post, so there is really nothing more to discuss on that subject.

In order to give us a little more insight, how about providing some information:
  • What was the list price?
  • What was your offer amount?
  • Did the listing agent respond to your email?
  • Did s/he forward your email to the seller, or did she respond that she wouldn't do that?
  • Did the seller accept, reject, or counter your offer?
  • If they countered, what was the price, and did you counter?
  • Has the discussion of commission come up during any of the counters, if any?

Keep us informed.
Not willing to divulge this personal information.

Not sure I have received many "answers" to my original post. I did receive a variety of opinions, including your contention that my email was illegal. As with many OPs on this forum, things start with a question and morph into a debate of the ethics and legal shades of grey in RE. The comments and questions have been interesting.

Not surprisingly, agents and the lay public seem to have different perspectives on this issue. In this specific example, it seems like most RE agents will argue every angle to keep the issue of commission from re-surfacing after the LA is signed. Transparency should be maximized throughout the RE process and I am not sure this is always the case.
 
Old 08-05-2012, 09:31 AM
 
Location: NJ
17,579 posts, read 38,288,152 times
Reputation: 16098
Quote:
Originally Posted by RE Skeptic View Post
Not willing to divulge this personal information.

Not sure I have received many "answers" to my original post. I did receive a variety of opinions, including your contention that my email was illegal. As with many OPs on this forum, things start with a question and morph into a debate of the ethics and legal shades of grey in RE. The comments and questions have been interesting.

Not surprisingly, agents and the lay public seem to have different perspectives on this issue. In this specific example, it seems like most RE agents will argue every angle to keep the issue of commission from re-surfacing after the LA is signed. Transparency should be maximized throughout the RE process and I am not sure this is always the case.
You aren't willing to tell us if the agent forwarded your email? What would be your objection to sharing that?
 
Old 08-05-2012, 09:46 AM
 
Location: Central Texas
19,879 posts, read 36,379,125 times
Reputation: 21293
Quote:
Originally Posted by RE Skeptic View Post
Not willing to divulge this personal information.

Not sure I have received many "answers" to my original post. I did receive a variety of opinions, including your contention that my email was illegal. As with many OPs on this forum, things start with a question and morph into a debate of the ethics and legal shades of grey in RE. The comments and questions have been interesting.

Not surprisingly, agents and the lay public seem to have different perspectives on this issue. In this specific example, it seems like most RE agents will argue every angle to keep the issue of commission from re-surfacing after the LA is signed. Transparency should be maximized throughout the RE process and I am not sure this is always the case.
You asked a question, and you received LOTS of answers. That you didn't like the answers doesn't make them not answers, or any less accurate, for that matter.

And as for what you're "not sure" of, you've gotten answers from the agents here about their practices as regards transparency. Including the fact that most of your concerns are contained in the contract the seller signs with the listing agent, thus are transparent IN WRITING. You keep saying things are hidden and agents from all around the country keep showing you where they exist in the listing contracts used. Again, just because you don't like something or it doesn't bolster your argument doesn't make it any less real.

Then you say that agents seem determined to keep the topic of commission from coming up after the contract is signed, in other words after the agreement is made by both parties (and you're not one of them) and put in writing and is an executed contract. The topic of commission has already been hashed out between the parties to that contract (and, again, you're not a party to that contract and cannot legally incite one party to breach or change it). Do you really have no concept of what the word contract means in this context? Or are you so focused on getting some of someone else's paycheck in your pocket that you've lost all sight of that (or never had it in the first place)?

Again, if your employer were approached by a customer who tried to convince them to pay you less so that the customer would benefit, not you, not your employer, but the customer who wanted some of your money for themselves, what would be your response? This has been asked at least twice and unless I missed it, you've not responded.
 
Old 08-05-2012, 10:01 AM
 
Location: Salem, OR
13,740 posts, read 31,550,338 times
Reputation: 12105
Quote:
Originally Posted by RE Skeptic View Post
Not willing to divulge this personal information.

Not sure I have received many "answers" to my original post. I did receive a variety of opinions, including your contention that my email was illegal. As with many OPs on this forum, things start with a question and morph into a debate of the ethics and legal shades of grey in RE. The comments and questions have been interesting.

Not surprisingly, agents and the lay public seem to have different perspectives on this issue. In this specific example, it seems like most RE agents will argue every angle to keep the issue of commission from re-surfacing after the LA is signed. Transparency should be maximized throughout the RE process and I am not sure this is always the case.
You must be participating in a different thread than me. The answer to your question was unanimously no. The agent does not legally have to forward your email communication directly to the seller. Offer yes. Email no. Several agents said that. Is that what you were asking?
 
Old 08-05-2012, 10:26 AM
 
4,383 posts, read 8,676,849 times
Reputation: 2331
Quote:
Originally Posted by Captain Bill View Post
This is RE Skeptic's original post:


The email could be considered a verbal negotiation, and since interfering with a third party contract is illegal, both the agent and the seller may have a cause of action against you.
Can you please cite the statute that you are refering too?
Thanks
 
Old 08-05-2012, 10:44 AM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,670,408 times
Reputation: 3809
Quote:
Originally Posted by RE Skeptic View Post

Not willing to divulge this personal information.
You're not willing to disclose any of that personal information, yet you were willing to disclose the personal information about the email and wanting the agents commission.

Now I am of the opinion that there is no offer, and that your thread was started in order to rant against Realtor commissions. Why would you not want to tell us what the agent did with your email, or if you received a counter? Why would you not want to follow up and tell us how successful you were in getting the seller to renegotiate the commission?

Quote:
Not sure I have received many "answers" to my original post. I did receive a variety of opinions, including your contention that my email was illegal.
You received many answers to your questions, including another one I gave today. The answers are just not what you want to hear.

I did not say that your email was illegal. I said that it was illegal to interfere with a third party contract (agents commissions) within a purchase contract. I have not seen your email, only your statement. What I said was it could be construed (depending on the wording) as being a a verbal negotiation as an addendum to the contract and if it was considered to be a negotiation, then that would be illegal. And that is why I said I would consult my attorney. And according to your words in your post, you were attempting, in that email, to encourage the seller to renegotiate the listing contract

Quote:
RE Skeptic:.....As with many OPs on this forum, things start with a question and morph into a debate of the ethics and legal shades of grey in RE. The comments and questions have been interesting.
Fortunately, there is a law of "agency", which describes fiduciary duties agents owe to clients. Agents must comply with are those laws, and those who have elected to not comply with them and get caught, have found out just how strong those laws are.

There is also a statute of frauds which covers contracts. One of those laws make attempting to have someone renegotiate a third party contract through a purchase contact illegal. You sir, are attempting to illegally influence a seller to renegotiate a third party contract.

So anytime people bring up subjects that are illegal, and unethical, such as yours, the debate doesn't morph, it actually begins with your post.

Quote:
by RE Skeptic:......Not surprisingly, agents and the lay public seem to have different perspectives on this issue. In this specific example, it seems like most RE agents will argue every angle to keep the issue of commission from re-surfacing after the LA is signed.
I agree, it is not surprising. We have a listing contract that was negotiated and signed. Why should we allow an unrepresented buyer to interfere with our contract?

Quote:
Transparency should be maximized throughout the RE process and I am not sure this is always the case.
The standard contracts in Arizona are about as transparent as they can be, and they evenly protect both parties to the contract, whether it's listing contract, purchase contract, or buyer/broker contract.
 
Old 08-05-2012, 11:21 AM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,670,408 times
Reputation: 3809
Quote:
Originally Posted by jdm2008 View Post
Can you please cite the statute that you are refering too?
Thanks
It's called Tortious Interference With a Contract.

You can google it and find many cases and definitions. Here is a link to one from a law firm:

| What is tortious interference with contract? | Rottenstein Law Group LLP


Below is an excerpt listing 5 things that will cause interference with a contract. It is from this site: Tortious Interference With Contract In Arizona - Arizona Contract Law


Quote:
To establish an interference with contract claim, the injured party must show five things:
  • That he or she had a contract with one or more other persons;
  • That the defendant knew about the contract;
  • That the defendant intentionally interfered with the plaintiff’s contractual relationship, causing a breach or termination of that relationship;
  • That the defendant’s conduct was improper; and
  • That the plaintiff was actually harmed and suffered damages due to the breach or termination of the contractual relationship.
Note that the law is probably different in every state.

The OP will most likely argue that he is simply asking the seller to "renegotiate" the contact - not breach it. However, no matter what you call it, if it looks like a duck, quacks like a duck, has web feet like a duck ---it is a duck.

If the seller uses any means to coerce the agent to reduce the commission, then my layperson opinion is that if the agent reduces the commission, the seller has breached the contract, the agent has been damaged, and will have a cause of action against the buyer and the seller.

That's why I've said a couple of times, if I were to receive something like that from an unrepresented buyer, or from a buyers agent, my first call would be to my attorney. My job is to protect my clients from legal action from any party, including me.

Last edited by Captain Bill; 08-05-2012 at 12:04 PM..
 
Old 08-05-2012, 11:43 AM
 
4,383 posts, read 8,676,849 times
Reputation: 2331
Quote:
Originally Posted by Captain Bill View Post
It's called Tortious Interference With a Contract.

You can google it and find many cases and definitions. Here is a link to one from a law firm:

| What is tortious interference with contract? | Rottenstein Law Group LLP


From you link

"In order to prove a case of tortious interference with contract, a plaintiff must be able to demonstrate all of the following things are true:

the plaintiff had a contract with another person or business,
the defendant knew about the contract,
the defendant deliberately acted in a way that would cause a breach of contract,
the breach of contract occurred, and

the plaintiff suffered damages as a result."

Quote:
Originally Posted by Captain Bill View Post
However, by you talking to the seller through an email, (if the agent forwards it) it is an attempt, by your own admission, to get him to renegotiate the listing contract. The email could be considered a verbal negotiation, and since interfering with a third party contract is illegal, both the agent and the seller may have a cause of action against you.
What you said here is false. As said in the link, the claim for tortuous interference requires breach. There would be no breach is the agent agreed to reduce his commission.
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