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Old 08-11-2012, 10:10 PM
 
397 posts, read 491,799 times
Reputation: 210

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Quote:
Originally Posted by MikePRU View Post
When Silverfall is saying the seller is in breach she's referring to the purchase contract not the listing agreement. I just want to make sure we're all on the same page in regards to that.
Correct, I am referring to the listing agreement.

Quote:
If you went to your mechanic and said fix my car and then changed your mind as he was finishing the repair wouldn't you feel the mechanic is due their fee? The point is that the job the professional was hired to do got done. You do a job successfully then you deserve to get paid. If you flake out you still owe a fee. The job still got done.
Poor analogy. A mechanic does not work on commission. In the world of sales and commission (the model for RE), most people don't get paid unless the deal closes. If you don't like working on commission, charge an hourly rate or flat fee.

 
Old 08-11-2012, 10:28 PM
 
Location: DFW - Coppell / Las Colinas
29,957 posts, read 34,568,659 times
Reputation: 35962
Quote:
Originally Posted by RE Skeptic View Post
Poor analogy. A mechanic does not work on commission. In the world of sales and commission (the model for RE), most people don't get paid unless the deal closes. If you don't like working on commission, charge an hourly rate or flat fee.
It was a great analogy. There are no "Rules" when you work for commission other what is spelled out in the LA. IF the LA says they get paid if they perform a service, they get paid.

For about the 6th time, if a Broker completes their mutually agreed upon performance the seller can and should owe a fee if the seller walks on a completed and signed PA.

The work is done, the seller owes the money even if they refuse go to closing. And again, this is rare since the buyer is the one who usually threatens a lawsuit for damages or to force compliance.
 
Old 08-12-2012, 06:13 AM
 
1,726 posts, read 2,275,604 times
Reputation: 3424
Quote:
Originally Posted by Captain Bill View Post
Not at all. I explained in my recent post.

RE Skeptic is the person who started this thread with the following post:
His motive is to induce the seller to breach (he calls it renegotiate) the contract with the agent. This is called Interference with a third party contract, and is actionable. Whether the agent would win or not is dependent on whether he can prove damage. But that should not be difficult.

The Skeptic's original post appears to be bogus because he has refused to bring us up to date, and refused to disclose any information about the transaction.

Obviously he is simply here to rant about Realtors, their contracts, and their commissions, hence his name RE Skeptic.

No seller in their right mind should want to deal with a buyer like this who attempts to induce them to breach their contract with the listing agent they are trusting to sell their home, and protect them from law suits.

Any reasonable seller would recognize the red flag signaling that if this guy will stoop low enough to illegally interfere with the listing contract so as to stiff the listing agent for his own financial gain, that he will certainly stoop low enough to try and stiff the seller later on.

RE Skeptic, and attorney Marksmu proclaim that they are doing nothing illegal if the agent agrees to the sellers "request"? to renegotiate the contract. Well, I disagree.

MUTUAL ASSENT
A meeting of the minds is an essential element requiring offer and acceptance. There must be no misrepresentation, collusion (conspiracy), undue influence, duress, menace and fraud.

If the agent is afraid that the seller will blackball him with all his acquaintances and cause him to lose valuable referrals unless he renegotiated his contract, then he is acting under "undue influence", possibly "duress".

And certainly there was collusion between the buyer and seller to coerce the agent to renegotiate the contract. The buyer initiated the inducement, and the seller went along. Therefore, that renegotiated contract would be Voidable.

The agent has been damaged, if not by the loss of commission, (if he refused to renegotiate) then by the loss of good will with the seller, creating a loss of valuable seller referrals, and potential negative press by the seller; and most likely the agent would win in court. Whether he wins or loses, the buyer still acted illegally, and can be sued, costing him a lot of money in attorney fees.

So if other readers listen to RE Skeptic and Marksmu, and think like they do, that they can skirt the law and succeed, think again. They rely on the word "renegotiate", saying that the contract isn't being breached.

Well, Pres Clinton also relied on a word, claiming that oral sex was not sexual intercourse.

In Pres Clinton's situation, and in RE Skeptic and Marksmu's situation, it walks like a duck and quacks like a duck, therefore, it is a duck.
This is your dumbest post yet. It's a good thing your not an attorney. You can't have undue influence without one party having so much of an advantage over the other that it essentially removes the other partys ability to use his own free will. Your interpretations of legal theories is laughable.
 
Old 08-12-2012, 10:01 AM
 
Location: Needham, MA
6,325 posts, read 9,041,197 times
Reputation: 5324
Quote:
Originally Posted by RE Skeptic View Post
Correct, I am referring to the listing agreement.
If you are referring to the listing agreement than you are not understanding the argument correctly as all the agents in this thread are referring to a breach of the purchase contract. The LA says if the purchase contract is breached the agent/broker is still owed a commission.

Quote:
Originally Posted by RE Skeptic View Post
Poor analogy. A mechanic does not work on commission. In the world of sales and commission (the model for RE), most people don't get paid unless the deal closes. If you don't like working on commission, charge an hourly rate or flat fee.
Apparently, you're not very good with analogies as this is an excellent one. Many independent mechanics are their own boss and make money on whatever business they bring in. If they don't work, they starve. While it's not literally a commission based model (more likely some sort of pass through corporation), it basically works the same way. All income is derived from business done. I could come up with 100 other examples as well like a self-employed accountant. Who is paying him a salary? If he does your taxes and you change your mind as he puts them in the mail isn't he still due a fee?
 
Old 08-12-2012, 11:22 AM
 
Location: Salem, OR
13,749 posts, read 31,588,814 times
Reputation: 12119
Quote:
Originally Posted by RE Skeptic View Post
Silverfall,
You did not quote my whole sentence:

"If the seller changes his mind, he is not breaching contract, but according to this LA, would owe the Broker the commission."

The typical LA obligates the seller to pay commission if certain criteria are met. If the seller backs out of a deal he is not in breach as long as he pays the commission stated in the contract. The LA is really more about the seller paying the Broker than actually selling the house.
The listing agreement is an agreement between the seller and the agent for a set of services. Those services end with the goal of selling the house. Of course the listing agreement is about paying the broker. That's the point of them. You pay the broker X and they deliver X services in exchange.

I am a private pay health care consumer. When I go to the doctor, I sign a payment agreement. When I hired my company attorneys, I signed a payment agreement. When I hired by CPA, I signed a payment agreement. What do you expect a listing agreement to be about? Providing services for free?

And yes if the seller breaches the purchase and sale agreement, he will owe the full compensation (or whatever is agreed) of the listing agreement. As it should be. The agent provided X services as agreed in the contract, and the seller made a decision to not reach the end goal. The seller needs to be responsible for the consequences of their own actions.
 
Old 08-12-2012, 11:29 AM
 
Location: Salem, OR
13,749 posts, read 31,588,814 times
Reputation: 12119
Quote:
Originally Posted by RE Skeptic View Post
If you don't like working on commission, charge an hourly rate or flat fee.
I actually offer both. 100% of consumers in the past year have chosen to not pay a guaranteed flat rate, but rather the commission. Agents don't go to this model because consumers overwhelmingly don't want it. Hourly rate only works for side consultations and such, not for full transactions. Consumers aren't wiling to take the financial risk.

Really. It is that simple.

If the agent assumes all the risk, which is the dominant compensation model in real estate, it will come with terms set by the agent. If consumers don't like it, they have choices, but most don't want that, which is why agents keep doing it the way they do it.

The reality is that what consumers want is for agents to drop their fees AND not have to pay them if the house doesn't sell. That business model blew apart in the crash as it isn't a sound business plan. Low fee and high risk =someone really bad at math.
 
Old 08-12-2012, 11:31 AM
 
Location: Central Texas
19,885 posts, read 36,416,546 times
Reputation: 21327
Quote:
Originally Posted by Silverfall View Post
The listing agreement is an agreement between the seller and the agent for a set of services. Those services end with the goal of selling the house. Of course the listing agreement is about paying the broker. That's the point of them. You pay the broker X and they deliver X services in exchange.

I am a private pay health care consumer. When I go to the doctor, I sign a payment agreement. When I hired my company attorneys, I signed a payment agreement. When I hired by CPA, I signed a payment agreement. What do you expect a listing agreement to be about? Providing services for free?

And yes if the seller breaches the purchase and sale agreement, he will owe the full compensation (or whatever is agreed) of the listing agreement. As it should be. The agent provided X services as agreed in the contract, and the seller made a decision to not reach the end goal. The seller needs to be responsible for the consequences of their own actions.
And here is the crux of the matter.
 
Old 08-12-2012, 02:02 PM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,680,955 times
Reputation: 3809
Quote:
Quote by Marksmu:----- Your interpretations of legal theories is laughable.
If Marksmu is going to throw stones, then he should not live in a glass house.

If any interpretation is laughable, this one immediately below one takes the prize:
Quote:
By Marksmu:…..And the realtor has breached his fiduciary duty to do his absolute best for the SELLER even when the best that he can do means that he himself must make a sacrifice. So the agent can lose his license....
False again!!! But you do win the price for the most laughable interpretation of a legal theory.

An agent can NOT lose his license for refusing to "sacrifice" his commission.
An agent has no duty to renegotiate his contract, or "sacrifice" his commission to enrich an unrepresented buyer, and it is not a breach of fiduciary duty if he refuses. This indicates the disrespect this attorney has for third party contracts.

Quote:
By Marksmu:….. There can be no illegal interference when the Broker MUST agree to something for it to be interfered with. If the broker agrees it’s a modified contract. If the broker rejects nothing has happened.
The interference occurred when the unrepresented buyer attempted to induce the seller to breach the listing agent contract. The seller can easily threaten to not refer the agent to all of his friends, and in fact, will recommend that they not use him, unless he agrees to modify the agreement.

My interpretation may not be correct, although I doubt it, but that does not mean that your interpretation is right. Put a dozen lawyers in the room, and you will have 12 interpretations of the law. It is what the judge or jury determines that matters. And it can be very expensive for the person that interfered with the contract to find out.
Quote:
By Marksmu:………Yousah --There is NO vicarious lability unless you as the agent or broker are an idiot and create it. Its very easy to not create liability… ...IF you do those things and you do them correctly there is a ZERO chance of creating vicarious liability....If you don't understand that then you should not be selling real estate.
Marksmu misplaces the use Vicarious Liability by equating it to the liability an agent would create for himself by creating an accidental illegal dual agency.

Vicarious Liability places liability on an employer (client) for conduct of an employee (agent). Whereas an agent who creates an accidental implied dual agency without written consent of both buyer and seller only creates liability for himself, not for his client/employer.


The buyer cannot sue the agents client/employer under the Vicarious Liability law because the agent has not performed an action that would create a liability for his client.
He has created the liability upon himself, and he is liable to be sued by both buyer and seller, because now he is accidentally illegally representing Both Buyer and Seller without their written consent.
Quote:
By Marksmu…..A commission can be paid to a principal in a transaction....the buyer is a principal...
Absolutely false. Only a licensed real estate agent can be paid a commission.

Arizona Commissioners Rules R4-28-1102
:----- “A license shall not allow a controversy with another licensee to jeopardize, delay, or interfere with the initiation, processing, or finalizing of a transaction on behalf of a client. This prohibition does not obligate a licensee to agree to alter the terms of any employment or compensation agreement or to relinquish the right to maintain an action to resolve a controversy.

Quote:
by Marksmu........DISCLOSE - A Realtor must always disclose any material fact...
---> A written offer is very material.
Marksmu does not understand the rules of Disclosure. As defined in the AZ Commissioners Rules on Disclosure, a written offer is NOT a Material Fact

The Duties to Client are specifically spelled out in Article 11. PROFESSIONAL CONDUCT in Commissioners Rules R4-28

A licensee... ...shall disclose in writing to all other parties any information the licensee possesses that materially or adversely affects the consideration to be paid by any party to the transaction, including:
  1. Any information that the seller or lessor is or may be unable to perform;
  2. Any information that the buyer or lessee is, or may be, unable to perform
  3. Any material defect existing in the property being transferred; and
  4. The existence of a lien or encumbrance on the property being transferred
A written offer does not fit into the Disclosure section, as Marksmu purports

The duty to submit offers is spelled out in commissioners rules R4-28, which essentially states that all offers must be promptly submitted, unless there are other agreements. (such as written instructions to withhold certain type offers)

No one should consider my interpretation of any law as legal advice because I am a layperson and cannot, and do not, provide legal advice.




 
Old 08-12-2012, 07:42 PM
 
1,726 posts, read 2,275,604 times
Reputation: 3424
Quote:
Originally Posted by Captain Bill View Post
If any interpretation is laughable, this one immediately below one takes the prize:
False again!!! But you do win the price for the most laughable interpretation of a legal theory.

An agent can NOT lose his license for refusing to "sacrifice" his commission.
An agent has no duty to renegotiate his contract, or "sacrifice" his commission to enrich an unrepresented buyer, and it is not a breach of fiduciary duty if he refuses. This indicates the disrespect this attorney has for third party contracts.

Holy taken out of context batman....I never said an agent could lose his license for not lowering his commission. That is explicitly spelled out in the code as pretty much the only thing (other than not doing something illegal) that he can't do. But hey, if you want to paste together quotes from a variety of posts, feel free...Taking some lessons from the Left I see- its about the only way you could make Obama look good too.

Quote:
Originally Posted by Captain Bill View Post
The interference occurred when the unrepresented buyer attempted to induce the seller to breach the listing agent contract. The seller can easily threaten to not refer the agent to all of his friends, and in fact, will recommend that they not use him, unless he agrees to modify the agreement.

None of that is interference. The Listing Agent still has the ability to say no. Badmouthing someone is not duress, nor is it coercion....


Quote:
Originally Posted by Captain Bill View Post
My interpretation may not be correct, although I doubt it, but that does not mean that your interpretation is right. Put a dozen lawyers in the room, and you will have 12 interpretations of the law. It is what the judge or jury determines that matters. And it can be very expensive for the person that interfered with the contract to find out.
Marksmu misplaces the use Vicarious Liability by equating it to the liability an agent would create for himself by creating an accidental illegal dual agency.

Law 101 - Judges interpret the laws and decide legal issues, Jury is the fact finder. Though I will agree with you a dozen attorneys may come to a dozen interpretations...that is what good attorneys do - they are advocates for their client - they invent or create ways to apply the laws that benefit their client above all else.

Quote:
Originally Posted by Captain Bill View Post
Vicarious Liability places liability on an employer (client) for conduct of an employee (agent). Whereas an agent who creates an accidental implied dual agency without written consent of both buyer and seller only creates liability for himself, not for his client/employer.
Again, you are terribly incorrect. Vicarious liability can not, as a matter of law, be found in the agent/client realm. Agents/Brokers are independent contractors...there can be no vicarious liability imputed to the client for having his agent deal with an unrepresented buyer. Vicarious Liability in the context of this conversation is impossible unless you are an employee of the person. An agent working for a Client is NOT an employee of the client. He is clearly, under all tests, an independent contractor. Vicarious liability can NEVER arise in this case. If you are arguing another point, I dont know what the heck it is.

Quote:
Originally Posted by Captain Bill View Post
The buyer cannot sue the agents client/employer under the Vicarious Liability law because the agent has not performed an action that would create a liability for his client. He has created the liability upon himself, and he is liable to be sued by both buyer and seller, because now he is accidentally illegally representing Both Buyer and Seller without their written consent.
Since vicarious liability can not exist - all that is left is accidental dual agency. If an agent/broker does not know how to prevent that from occurring this far into this conversation (it is spelled out in detail somewhere in this thread by me) then I have NO mercy for that agent/broker because he is mentally deficient in every way. IT IS VERY SIMPLE. If you are scared of it, then you are nothing more than a sloppy idiot.


Quote:
Originally Posted by Captain Bill View Post
Absolutely false. Only a licensed real estate agent can be paid a commission.

Arizona Commissioners Rules R4-28-1102
:----- “A license shall not allow a controversy with another licensee to jeopardize, delay, or interfere with the initiation, processing, or finalizing of a transaction on behalf of a client. This prohibition does not obligate a licensee to agree to alter the terms of any employment or compensation agreement or to relinquish the right to maintain an action to resolve a controversy.
That may be true in Arizona, but in Texas where I am it is permitted. Your point proves nothing.

Quote:
Originally Posted by Captain Bill View Post
Marksmu does not understand the rules of Disclosure. As defined in the AZ Commissioners Rules on Disclosure, a written offer is NOT a Material Fact
A Material Fact in Texas is "ANYTHING that if known to the client would be a significant factor to a reasonable and prudent person in making a determination" a full price offer on a non standardized contract would certainly be considered a significant factor. I could walk all over ANY agent who tried to argue otherwise.

An offer is not a disclosure. Maybe in Arizona Agents/Brokers do not have to tell their client about all offers, but in Texas they do. Any agent who conceals any offer unless specifically told not to convey it is dishonest and should be run out of business. I have no sympathy for that type of Agent.


Quote:
Originally Posted by Captain Bill View Post
The Duties to Client are specifically spelled out in Article 11. PROFESSIONAL CONDUCT in Commissioners Rules R4-28

A licensee... ...shall disclose in writing to all other parties any information the licensee possesses that materially or adversely affects the consideration to be paid by any party to the transaction, including:
  1. Any information that the seller or lessor is or may be unable to perform;
  2. Any information that the buyer or lessee is, or may be, unable to perform
  3. Any material defect existing in the property being transferred; and
  4. The existence of a lien or encumbrance on the property being transferred
A written offer does not fit into the Disclosure section, as Marksmu purports
Good Great Grand - I never purported to argue Arizona laws. I have consistently said that what I am saying applies in Texas...

Quote:
Originally Posted by Captain Bill View Post
The duty to submit offers is spelled out in commissioners rules R4-28, which essentially states that all offers must be promptly submitted, unless there are other agreements. (such as written instructions to withhold certain type offers)

No one should consider my interpretation of any law as legal advice because I am a layperson and cannot, and do not, provide legal advice.

In Texas agents have 5 parts to their fiduciary duty
1) Obedience - " act in good faith at all times and obey the principals LEGAL instructions in accordance with the contract.
2) Loyalty - Requires that the agent "place the principals interests above those of all others, including the agents own self-interest"
3)Disclosures - duty to keep the principal informed of all facts or information that might affect a transaction.
4)Accounting
5) Confidentiality

Whatever you do in Arkansas has no bearing on what I do here. But all of the things I have said that you purport to say are false are TRUE in Texas....The only exception is that you are flat wrong about your legal interpretation of duress and contract interference.

I dont need a legal disclaimer at the bottom of my post because nobody on here could in their right mind consider my rebutting you legal advice.
 
Old 08-12-2012, 10:16 PM
 
397 posts, read 491,799 times
Reputation: 210
Quote:
Originally Posted by MikePRU View Post
If you are referring to the listing agreement than you are not understanding the argument correctly as all the agents in this thread are referring to a breach of the purchase contract.
Apparently you "are not understanding the argument correctly". Not sure what agents you are referring to when you say "all the agents in this thread..." but we have clearly been talking about the LA not the purchase contract.

I will refer you to my post #373 where I once again raised the issue of the LA giving the Broker 1/2 the EM if the buyer defaults. We have been going back and forth (with a side bar on legal advice from the Captain) since that point. Like you, Silverfall also thought I was referring to the purchase contract. After this was clarified by both myself and the Captain, SF acknowledged the oversight.


Quote:
The LA says if the purchase contract is breached the agent/broker is still owed a commission.
I think I stated this about a week ago and we have been discussing it since then, but thanks for re-addressing this. Perhaps you could emphasize this to your next potential seller before they sign.
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