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Old 08-16-2012, 01:33 PM
 
413 posts, read 701,001 times
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Quote:
Originally Posted by Captain Bill View Post
Please tell me which term in the listing agreement is one sided, and not enforceable.
Reread what I wrote and don't misinterpret what I write. I didn't say one-sided. I said unreasonable. I said one side was a sophisticated party. And I did not say it was not enforceable. I said it has a good chance of being stricken. That is very different from what you wrote.

 
Old 08-16-2012, 01:37 PM
 
1,731 posts, read 2,291,840 times
Reputation: 3428
Quote:
Originally Posted by Captain Bill View Post
That's because and others keep saying you can interfere with a contract as you wish. You can talk about my contract all you want, but when you begin talking to my seller about it, you are interfering, and that is when I will talk to my attorney and let my seller know what to expect from this type buyer.

Freedom of speech does not allow one to insert something into a purchase contract that interferes with a third party contract.

Nor does it allow a buyer to have a discussion with a seller, in email, in person, or on the phone, that is to induce the seller to renegotiate a third party contract.
You are confusing two different things....You are confusing criminal law and civil law.

Freedom of speech allows him to say just about anything he wants to anyone without risk of going to jail. There are obvious instances when it crosses the line and becomes criminal, but not here. A listing agreement can not tell the buyer he can not talk to the seller; nor can it tell him what he can and cant say to the buyer when he chooses to talk to him.

However, Civil law may tell him that even though you have the right to do it, you have caused an economic damage and therefore may be civilly liable to the individual....I personally think the conversation does not amount to interference like you so vehemently claim it does....but I think a real litigious person could sue you for it.

I dont think many attorneys, certainly none worth their salt, would take the case on a contingency so the agent is going to pay out of pocket on the expectation of victory...in the real world most agents would be angry but just let it go - b/c instead of just being out 1/2 of the broker commission they are out 1/2 plus all the costs of court and attorneys fees....it probably only makes since for listings well over $1,000,000....probably closer to the $3,000,000 range.
 
Old 08-16-2012, 01:42 PM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,713,215 times
Reputation: 3810
Quote:
Originally Posted by hindukid View Post
Reread what I wrote and don't misinterpret what I write. I didn't say one-sided. I said unreasonable. I said one side was a sophisticated party. And I did not say it was not enforceable. I said it has a good chance of being stricken. That is very different from what you wrote.
Quote:
Originally Posted by hindukid
And if you really want to get into respecting contracts a good lawyer is going to argue that the realtor is a sophisticated party to the transaction and is using a form agreement with an unreasonable term, and that term should be stricken. And that argument has a good chance of winning. If you would like your listing agreement to be enforceable...
Then let me rephrase the question. Please quote the term that is unreasonable.

When you say, "if you would like your listing agreement to be enforceable" you are implying that it is unenforceable. What is it about the "term" you're referring to that makes in unenforceable?

Quote:
by Hindukid:-----I suggest you do some reading regarding contracts where one side is a sophisticated party dealing in matters of kind and the other is not.
Cite me one and tell me how it applies to the AZ listing contract and I'll read it.
 
Old 08-16-2012, 03:13 PM
 
Location: DFW - Coppell / Las Colinas
30,030 posts, read 34,728,377 times
Reputation: 36078
Quote:
Originally Posted by Captain Bill View Post
Please tell me which term in the listing agreement is one sided, and not enforceable.
Our LA has been developed by one of the best RE attorneys in TX and I can guarantee it's very enforceable.
 
Old 08-16-2012, 03:54 PM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,713,215 times
Reputation: 3810
Quote:
.by Marksmu..Freedom of speech allows him to say just about anything he wants to anyone without risk of going to jail. There are obvious instances when it crosses the line and becomes criminal, but not here. A listing agreement can not tell the buyer he can not talk to the seller; nor can it tell him what he can and cant say to the buyer when he chooses to talk to him.
No mention has been made of going to jail.

Freedom of speech is not absolute. There are terms of service restrictions on forums like this that restrict freedom of speech to prohibit personal attacks, rudeness, and vulgarity. Freedom of speech does not allow one to slander another, without recourse; and it doesn't allow one to interfere with a third party contract, without recourse.

There has not been any mention of a listing agreement telling the buyer anything. The listing agreement is only between the seller and listing agent. The seller can issue instructions to the listing agent on what the listing agent can or cannot do.

The buyer and seller can talk if they wish. No one can stop that, except to advise each that it certain circumstances it may not be a good idea. However, the buyer does not have a right to ask the seller to renegotiate the agents contract. That is interference.

Quote:
by Marksmu:-----However, Civil law may tell him that even though you have the right to do it, you have caused an economic damage and therefore may be civilly liable to the individual....I personally think the conversation does not amount to interference like you so vehemently claim it does....but I think a real litigious person could sue you for it.
And this is what I've been saying all along.

Quote:
by Marksmu: ----I dont think many attorneys, certainly none worth their salt, would take the case on a contingency so the agent is going to pay out of pocket on the expectation of victory...in the real world most agents would be angry but just let it go - b/c instead of just being out 1/2 of the broker commission they are out 1/2 plus all the costs of court and attorneys fees....it probably only makes since for listings well over $1,000,000....probably closer to the $3,000,000 range.
It is not economically feasible for an attorney to take a case on contingency unless the risk/reward is very high. In 1980 I sold my company to a guy who set me up, and after making his down payment and one payment on a $500k note he stopped paying me. The attorney that helped me draft the sale agreement was not proficient in contracts and made an error in drafting, plus missed a bunch of red flags that an attorney proficient in business and contract law would have caught. Her office was in my building and she didn't advise me that she was not proficient in this arena. She should have referred me.

I had to then live in the law library spending a fortune making copies of cases, as I was studying contract law, and misrepresentation, and learning how to choose the right attorney.

When I had sufficient information, I hired a partner in a large firm that specialized in business law. He volunteered that, because a jury can go either way in these cases, he could not work on contingency. I spent a year then studying contract and business law, and accumulated a fairly large law library. (Large for a non-attorney) And I've updated the restatement, contracts and agency because it helps me in my work with contracts in my business.

That law suit cost me $50,000 in attorney fees, and we settled just prior to going to trial. He agreed to pay me, and we each paid our own fees.

Since then I have been extremely risk conscious, and very protective when I feel someone is trying to steal from me, or take advantage of my client. I have not had a buyer interfere with any of my contracts, and so far all of my buyer and seller clients have been very reasonable people.

So if I was in a situation where the buyer was inducing my seller to force me to modify my agreement, and if the seller used economic duress, such as telling me that he would advise all his friends, family, and associates to not use me, leaving me no alternative but to lose money by accepting the modification, or lose money by loss of referrals, I would take legal action.

A new agent who has no contract law knowledge, and no financial resources may roll over, but there are plenty of seasoned agents who are mentally and financially prepared to take a stand against that sort of duress.
 
Old 08-16-2012, 04:34 PM
 
413 posts, read 701,001 times
Reputation: 294
Quote:
Originally Posted by Captain Bill View Post

So if I was in a situation where the buyer was inducing my seller to force me to modify my agreement, and if the seller used economic duress, such as telling me that he would advise all his friends, family, and associates to not use me, leaving me no alternative but to lose money by accepting the modification, or lose money by loss of referrals, I would take legal action.
This is what you are not getting. You have your contract and you have the right to stick by it. If you don't want to amend it you don't have to. But seller also has every right to bad mouth you to their friends, co-workers, yelp and city data. And buyer or any other person can tell true statements about you to seller or anyone else. I can promise you that none of that is interference with a third party contract. Quite frankly this is exactly what OP wants. He wants seller to realize he is paying too much and then cry and whine about it to you. And quite frankly the OP's strategy is perfectly legal. He is not making seller complain about his contract, he is only pointing out to seller what might seem unfair. If you want to stand by your contract you can, and seller has every right to bad mouth you.

Now if buyer were to tell seller that he needs to break your listing agreement and fire you, then you would have a case. But buyer can certainly point out that seller is not paying less commission because there is no buyer's agent and you are the one pocketing it all. There is absolutely nothing wrong with that.

If I buy a TV at Best Buy and try and return it after 33 days Best Buy can certainly say that return policy is 30 days its spelled out in the contract. And I have every right to tell all my friends that best Buy sucks and their return policy is only 30 days when Target and WalMart have 90 day policies. It is the same thing.

What irks me is that it seems to me that what you really are trying to prevent is seller realizing that because buyer has no agent you are the one who is going to collect the entire windfall and make double what the seller anticipated you getting. At least MikePRU seems to take the attitude of who cares if seller knows. That is our listing agreement and I'm not changing it. Seems to me that you don't want seller to find out because you know that he is not going to be happy. If he really doesn't care and thinks its perfectly fine then you have nothing to worry about.

This is America. People make contracts and you have to live by them. But its also a country where you can certainly state you are unhappy with a contract and you can tell anybody else that they have a bad contract. By your logic you could have a listing agreement with one of your sellers for 6%. That seller then talks to a neighbor who says that he only paid 5%. When your seller calls you and says why am I paying 6% when he only paid 5% are you going to sue the neighbor for interfering with your contract. Pointing out that someone has a bad contract is not interfering with that contract.

My statement: Best Buy charges way to much for AV cables. You can buy them on the internet for 80% off Best Buy prices.

Now if somebody returns his HDMI cable to Best Buy and buys one on Ebay, do you think Best Buy has a claim of action against me. Of course not. And regarding defamation; truth is an absolute defense to a defamation suit. If OP sends a letter to seller that states he has no buyer's agent and therefore listing agent does not need to pay any buyer's agent, he has an absolute defense to defamation because that statement is 100% true.
 
Old 08-16-2012, 05:02 PM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,713,215 times
Reputation: 3810
Quote:
Originally Posted by hindukid View Post
This is what you are not getting. You have your contract and you have the right to stick by it. If you don't want to amend it you don't have to. But seller also has every right to bad mouth you to their friends, co-workers, yelp and city data. And buyer or any other person can tell true statements about you to seller or anyone else. I can promise you that none of that is interference with a third party contract.
This is what you're not getting. If the seller asks me to renegotiate my commission and I say no and he says ok, then no harm is done.

If he says, if you do not reduce your commission, I will advise all of my friends, neighbors, and anyone I come into contact with to not use you.

Now the seller has placed me into a situation of economic duress. I have no alternative but to accept the reduction, and suffer a loss, or to refuse, and suffer a loss of valuable referrals.

That is economic duress, and the seller can be sued.

If the buyer has induced the seller to place me in that situation, that is interference with a third party contract.


Quote:
...
What irks me is that it seems to me that what you really are trying to prevent is seller realizing that because buyer has no agent you are the one who is going to collect the entire windfall and make double what the seller anticipated you getting. At least MikePRU seems to take the attitude of who cares if seller knows. That is our listing agreement and I'm not changing it. Seems to me that you don't want seller to find out because you know that he is not going to be happy. If he really doesn't care and thinks its perfectly fine then you have nothing to worry about.
What irks you is that I don't buy into your interfering with a listing contract as an unrepresented buyer. I have not said that I don't want my seller to know. What I have said is that an agent is required to submit all contracts. The agent is not required to submit a cover letter. I have not said that I would not inform the seller that we have someone who wants to interfere with our contract. I have said that my first telephone call would probably be to my attorney.

Quote:
by Hindukid:---
When your seller calls you and says why am I paying 6% when he only paid 5% are you going to sue the neighbor for interfering with your contract. Pointing out that someone has a bad contract is not interfering with that contract.
Your statement is correct, and that is a bad analogy. The neighbor is not a buyer who is attempting to induce the seller get the listing agent to reduce the commission for the buyers gain.

The answer could be one of many. The agent may have a fee for services. The neighbor may have paid 5% for a given amount of services, and the current seller may have opted for more services. There are a variety of level of service plans that agents offer, including pay by the hour.
 
Old 08-16-2012, 05:27 PM
 
397 posts, read 493,346 times
Reputation: 210
Quote:
Originally Posted by Zippyman View Post
I would agree that any commission is wasted money if you're getting the type of agent that hangs out on Trulia all day & competes to give away their paycheck.
Sounds more productive than hanging out on this post "all day" arguing with buyers and sellers!
 
Old 08-16-2012, 05:43 PM
 
413 posts, read 701,001 times
Reputation: 294
Quote:
Originally Posted by Captain Bill View Post
This is what you're not getting. If the seller asks me to renegotiate my commission and I say no and he says ok, then no harm is done.

If he says, if you do not reduce your commission, I will advise all of my friends, neighbors, and anyone I come into contact with to not use you.

Now the seller has placed me into a situation of economic duress. I have no alternative but to accept the reduction, and suffer a loss, or to refuse, and suffer a loss of valuable referrals.

That is economic duress, and the seller can be sued.

If the buyer has induced the seller to place me in that situation, that is interference with a third party contract.
I can assure you that that is not economic duress and the seller can not be sued. I sell stuff on Ebay all the time. I can assure you that buyers can leave whatever feedback they want. All the time they state things like let me return my non returnable item or negative feedback. I can assure you that its not economic duress and that they can not be sued. I don't have to let them return the item, but I have to suffer the feedback consequences. If I eat at Mike's Sushi Restaurant and the food is terrible I can ask for my money back. They can refuse me and I can go on yelp and state that they have terrible food and give them one star. According to your logic they would be able to sue me for going on yelp and giving them a bad review.

Economic duress is when you owe your employees a months back pay and you say "accept a 50% reduction in pay or else you won't get the money owed to you." Here your seller has every right to bad mouth you and not give you referrals. You can't sue them because they do that or threaten to do that.

Your alternative to the reduction is to accept that bad mouthing and lack of referrals. You are not entitled to both. If you would like both then perhaps you should create a listing agreement that you know the seller will be happy with.

Please talk to your lawyer. You honestly have no clue what the law is. I have stated 5 times that this is not economic duress and you will not be able to sue your seller. Perhaps your lawyer will make you realize what I obviously can not. You are honestly trying to suppress your client's speech. You honestly think he shouldn't be able to give you bad reviews and tell people he is unhappy with you. You are not going to be winning any clients if they are reading this.

Last edited by hindukid; 08-16-2012 at 05:51 PM..
 
Old 08-16-2012, 05:46 PM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,713,215 times
Reputation: 3810
Quote:
Originally Posted by hindukid View Post
You honestly have no clue what the law is..
And you do? Provide the citations.
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