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Old 08-15-2012, 02:51 PM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,686,451 times
Reputation: 3809

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Quote:
Originally Posted by MikePRU View Post
...This is mind boggling to me that we're still debating whether or not a professional who's completed the job they were hired to do deserves to get paid...
I don't know why it's so mind boggling. The guy is one who is willing to interfere with a third party contract in order to induce the seller to "renegotiate" the agents contract, so he (the buyer) can get that money. And in another thread, he doesn't want to pay tax on the windfall (assuming he were to ever get it).

Notice that he never goes directly to the listing agent to ask him/her for a rebate!!!

Why?

Because he probably knows the agent would say No.

It appears that he feels it would be easier for the seller to place the agent under economical duress or exert undue influence on him by threatening to not refer him, or to give him negative press if he does not agree to modify the contract.

And he's listening to an attorney who is not an expert on contract law and is providing incorrect information. Information that is different from information in the Restatement of the Law 2d, Contracts.

 
Old 08-15-2012, 03:26 PM
 
1,726 posts, read 2,278,928 times
Reputation: 3424
Quote:
Originally Posted by Captain Bill View Post

And he's listening to an attorney who is not an expert on contract law and is providing incorrect information. Information that is different from information in the Restatement of the Law 2d, Contracts.
I would consider myself an expert at contract law considering I do it for a living. You keep pulling legal concepts up on the internet reading one case or extracting wrong conclusions from different sources that look legitimate to you. Legal theory does not operate in a vacuum. One case finding one person 1% liable in a district court does not mean the theory of agency/liability is now changed. You act like posting something that looks legitimate like "Information that is different from information in the Restatement of the law 2d, contracts" makes you correct or legitimate or educated.... Its ridiculous. Your as arrogant as you are ignorant.

You also seem to be operating in the belief that every state follows Arizona law....another big error. Maybe in Arizona a listing agreement creates employment and agency, but every agreement I have ever worked with in Texas states specifically that the Agent/Broker is an independent contractor and not an employee of the Client....To be considered an employee for vicarious liability you have to be able to control the actions of that employee at all times...Being that the listing agreement does not allow you the ability to FIRE your agent without cause - he is not an employee in Texas. Texas is an at-will employment state. I don't know what Arizona is. Also if your not an independent contractor then the client it seems would have to be paying employment taxes...do your clients pay your employment taxes as well in Arizona or are you "self employed" You cant be both an employee and self employed...your one or the other...these are all factors courts consider when determining liability and agency...but you would not know that b/c your not educated in law past your experience in a single real estate contract...

There are lots of intricacies in the law that you are not aware of. You spout off like you know what your talking about because you were able to GOOGLE something. But the reality is that you are wrong and you dont have a clue what your talking about.

Ive lost interest in arguing with you b/c it is pointless...you double down on wrong theories and assert yourself as if you know everything you are talking about. Its like arguing with a 3 year old.

1. In Texas there is no vicarious liability when dealing with an unrepresented buyer.
2. It IS easy to prevent dual agency and it does not create extra liability when done correctly.
3. In Texas a Principal to a transaction is allowed to receive a portion of the commission from the Broker...many brokerages even have a specific form for it.
4. Tortious interference with contract is a trickier subject than the two above....there are ways that it could be sucessfully asserted, but the suggestion that a seller ask his broker to lower his commission almost certainly will not meet that bar. It is pointless anyway as the Buyer should be asking the Agent not the seller....The OP I dont believe understood how the contract was written...he probably understands it now (at least I hope he does) and realizes that he should have been talking about a concession with the broker, not the seller.
 
Old 08-15-2012, 03:37 PM
 
Location: Cary, NC
31,650 posts, read 55,416,037 times
Reputation: 30198
Quote:
Originally Posted by RE Skeptic View Post
so your (yes or no) answer is...?

Will make it a little more concrete.

Buyers submits offer on contract including an addendum that states:

"buyer is unrepresented (does not have an agent). There will be no obligation for listing broker to pay the standard 3% buyer agent commission at closing"

Both contract and addendum are on official forms of states RA.


Would you submit this contract with it's addendum to your seller?
Quote:
Originally Posted by marksmu View Post
...
4. Tortious interference with contract is a trickier subject than the two above....there are ways that it could be sucessfully asserted, but the suggestion that a seller ask his broker to lower his commission ....
Can a buyer make the following commitment to the seller?
"There will be no obligation for listing broker to pay the standard 3% buyer agent commission at closing..." which is unsupported by any agreement, asserts price fixing, and obviously in no way a "suggestion," yet legitimately claim buyer is not interfering?
 
Old 08-15-2012, 04:06 PM
 
1,726 posts, read 2,278,928 times
Reputation: 3424
Quote:
Originally Posted by MikeJaquish View Post
Can a buyer make the following commitment to the seller?
"There will be no obligation for listing broker to pay the standard 3% buyer agent commission at closing..." which is unsupported by any agreement, asserts price fixing, and obviously in no way a "suggestion," yet legitimately claim buyer is not interfering?
No - a buyer can not make that commitment b/c the Broker can not legally do it. That would be interference with a third party contract.

However, the buyer can ask the seller to try to negotiate with the broker....Likewise the buyer can ask the broker to lower his fee....Since the buyer asserts no power or authority over either party it will not be interference as either party can simply decline and nothing illegal has occurred.

A buyer can not require a party to a contract to breach it. A contract is void on its face if it is illegal and requiring someone to breach a contract would be considered an illegal contract.
 
Old 08-15-2012, 04:08 PM
 
Location: Cary, NC
31,650 posts, read 55,416,037 times
Reputation: 30198
Quote:
Originally Posted by marksmu View Post
No - a buyer can not make that commitment b/c the Broker can not legally do it. That would be interference with a third party contract.

However, the buyer can ask the seller to try to negotiate with the broker....Likewise the buyer can ask the broker to lower his fee....Since the buyer asserts no power or authority over either party it will not be interference as either party can simply decline and nothing illegal has occurred.

A buyer can not require a party to a contract to breach it. A contract is void on its face if it is illegal and requiring someone to breach a contract would be considered an illegal contract.
Thanks. More or less my train of thought.
 
Old 08-15-2012, 04:35 PM
 
2,635 posts, read 4,353,779 times
Reputation: 2080
marksmu, the value of your posts may be lost on some, but I appreciate the information. Thanks.
 
Old 08-15-2012, 05:22 PM
 
413 posts, read 699,472 times
Reputation: 294
Quote:
Originally Posted by MikeJaquish View Post
Can a buyer make the following commitment to the seller?
"There will be no obligation for listing broker to pay the standard 3% buyer agent commission at closing..." which is unsupported by any agreement, asserts price fixing, and obviously in no way a "suggestion," yet legitimately claim buyer is not interfering?
Don't see what is wrong with the statement. It is a fact. If buyer has no agent then seller's agent will not have to pay a buyer's agent commission.

The statement does not state that seller's agent fee should be reduced. It does not tell seller to renegotiate with listing agent. It does not do anything except state the fact that there is no need for the seller's agent to pay a buyer's agent commission because there is no buyer agent. It in no way implies that seller's agent can't keep the commission agreed to with the seller. If they agreed on 6%, this does nothing to change that.
 
Old 08-15-2012, 06:22 PM
 
1,726 posts, read 2,278,928 times
Reputation: 3424
Quote:
Originally Posted by hindukid View Post
Don't see what is wrong with the statement. It is a fact. If buyer has no agent then seller's agent will not have to pay a buyer's agent commission.

The statement does not state that seller's agent fee should be reduced. It does not tell seller to renegotiate with listing agent. It does not do anything except state the fact that there is no need for the seller's agent to pay a buyer's agent commission because there is no buyer agent. It in no way implies that seller's agent can't keep the commission agreed to with the seller. If they agreed on 6%, this does nothing to change that.
You don't understand how commission works then. The listing agents contract between the listing agent and the seller states what commission is paid. When a buyer comes with a realtor the listing agent agrees to split the commission with the buyers agent. The seller pays the listing agent and the listing agent then pays the buyers agent. Thus the fact that there is no buyers agent does not change the commission paid unless it is already specifically spelled out by the seller and the listing agent.
 
Old 08-15-2012, 07:50 PM
 
Location: Columbia, SC
8,858 posts, read 17,464,918 times
Reputation: 6239
Quote:
Originally Posted by marksmu View Post
You don't understand how commission works then. The listing agents contract between the listing agent and the seller states what commission is paid. When a buyer comes with a realtor the listing agent agrees to split the commission with the buyers agent. The seller pays the listing agent and the listing agent then pays the buyers agent. Thus the fact that there is no buyers agent does not change the commission paid unless it is already specifically spelled out by the seller and the listing agent.
Well stated and quite accurate. Interesting take on TI...I can follow your logic. I believe it to fall into a gray area but I am not a legal expert.
 
Old 08-15-2012, 08:15 PM
 
Location: Pinal County, Arizona
25,107 posts, read 34,391,056 times
Reputation: 4893
Quote:
Originally Posted by marksmu View Post
You don't understand how commission works then. The listing agents contract between the listing agent and the seller states what commission is paid. When a buyer comes with a realtor the listing agent agrees to split the commission with the buyers agent. The seller pays the listing agent and the listing agent then pays the buyers agent. Thus the fact that there is no buyers agent does not change the commission paid unless it is already specifically spelled out by the seller and the listing agent.
First let me say that I know what I'm about to say is being REALLY PICKY

But, when we talk about payment of compensation, whatever it may have been agreed upon - that payment goes to the Listing BROKER who then pays THEIR AGENT based on their individual employment agreement.

Then the LISTING BROKER pays compensation to the SELLER BROKER based upon the cooperative brokerage agreement between the two brokers. Then that broker pays their agent per their agreement.

Thank you for letting me be picky.
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