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It was listed in the Agent Notes that the cabinets did not convey. Buyers Agent knew or should have known. Buyers agent counseled their buyers to make and agree to offer without them knowing this bit of information.
Both agents dropped the ball and fell short of their responsibilites. OP should write a stern letter to both agents managing broker. Give the brokers 3 business days to work this out between them on how to make buyers whole. Let them know if in three days there is not an acceptable resolution that legal remedies would be initiated.
Both agents need to be called in on the carpet and reprimanded by their brokers for failing their clients. Sellers agent did a terrible job, buyers agent did a not very good job.
I agree with all of this. I guess I meant I don't get why some are ONLY putting the blame on the buyer's agent. Yes, they were negligent, but I don't think sole responsibility is on them.
As for the Buyer's agent, I have no idea whether they even read the comments listed in the MLS. But that really isn't that material. What matters is what is written in the contract. Even if the Buyer's agent had read the comments, would they really be working in the buyer's interest if they reminded the Seller to exclude the cabinets from the contract?
It's just good that real estate contracts need to be in writing in order to be enforceable. Prior verbal discussions, previous marketing materials, and even comments posted in the MLS do not matter unless they are written into the contract.
But buyer agents write up the contracts. So the agent would have written up the contract specifically stating they were included to head off the inevitable insanity that ensues. Sometimes being redundant in a contract is the way to go since clearly the seller and their agent didn't read it and felt that having them excluded on the MLS "counted" somehow in the contract.
If the buyer wins, I would expect that the seller will go after the listing agent for the loss. It is just ugliness all around.
Who gives a crap what a MLS listing says, half the time the info isn't exact anyway so can I now sue for false advertisement if they stated house is 1759 sq feet and its 1640 sq ft? A listing is not a contract its a advertisement. If the seller wanted the cabinets he should of clearly stated the cabinets are not sold with the house. It is expected that when you look at a house if a item its bolted screwed or otherwise secured to the structure it usually stays as it's considered part of the structure. Unless its specifically excluded and you acknowledged its removal it should of stayed. I would file a complaint against the broker and the selling agent with your state RE regulatory body and go see a lawyer. A RE lawyer.btw 1500 to write a letter is overpriced.
Look when I sell ( if I sell ) my current house I will give a list of what is NOT included in the sale. If a seller wants something on that not included list I am willing to listen to a offer. Otherwise do not expect to get it at turn over time. But you will know exactly what you are getting.
But buyer agents write up the contracts. So the agent would have written up the contract specifically stating they were included to head off the inevitable insanity that ensues. Sometimes being redundant in a contract is the way to go since clearly the seller and their agent didn't read it and felt that having them excluded on the MLS "counted" somehow in the contract.
Sure, if the Buyer's agent knew about the cabinets they could have made special note of it in the contract (and perhaps pressed for a lower price if they were not included). But since the promotional materials for the sale of the house apparently highlighted the cabinets, there's a good chance that the Buyer's agent wasn't even aware of the seller's desires to keep the cabinets. (And why is the Seller's agent advertising the cabinets if they knew full well that the seller wanted to keep them?? That's just sheer negligence.)
Ultimately, the contract is between the Buyer and the Seller. Both sides need to read and understand what they are signing. If the Seller's agent somehow thought that mentioning the cabinets in the MLS was sufficient...well, they should go back to school. I think the very basic concept with contracts to "put it in writing" was probably covered in Real Estate 101.
Quote:
Originally Posted by Silverfall
If the buyer wins, I would expect that the seller will go after the listing agent for the loss.
As they should.
Last edited by jackmichigan; 05-01-2014 at 02:44 AM..
Who gives a crap what a MLS listing says, half the time the info isn't exact anyway...<>
A listing is not a contract its a advertisement. If the seller wanted the cabinets he should of clearly stated the cabinets are not sold with the house.
Sure, if the Buyer's agent knew about the cabinets they could have made special note of it in the contract (and perhaps pressed for a lower price if they were not included). But since the promotional materials for the sale of the house apparently highlighted the cabinets, there's a good chance that the Buyer's agent wasn't even aware of the seller's desires to keep the cabinets. (And why is the Seller's agent advertising the cabinets if they knew full well that the seller wanted to keep them?? That's just sheer negligence.)
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Exactly. The marketing materials laid out in the kitchen for potential buyers to pick up included a list of 16 various upgrades. One of the bullet points on that list is "CUSTOM GARAGE FLOOR COATING & STORAGE CABINETS."
I can understand that the seller might not have thought about ascertaining that the cabinets were shown as an exclusion in the contract (he probably thought that having informed his agent that he wanted to keep them was sufficient), but in the several months the house was for sale, he never read this list of upgrades, and thought, "Whoa.....those cabinets shouldn't be on the upgrade list!"
It also tells me that his agent completely forgot about his desire to exclude them, throughout the entire marketing period, not just during our negotiations and closing.
Thanks for bringing that up. Another good point for my formal complaint.
A RE lawyer.btw 1500 to write a letter is overpriced.
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This is more in line with a retainer to represent the OP. Keep in mind, if the OP wins, 90% of the courts out there would have the seller pay the OP's legal fees. If the OP settles, negotiating these fees should be included as they are frequently overlooked until after negotiations.
I hope the OP uses every remedy available. There should have been clear notes on the cabinets "not included w/ sale."
This is more in line with a retainer to represent the OP. Keep in mind, if the OP wins, 90% of the courts out there would have the seller pay the OP's legal fees. If the OP settles, negotiating these fees should be included as they are frequently overlooked until after negotiations.
I hope the OP uses every remedy available. There should have been clear notes on the cabinets "not included w/ sale."
Yeah you're probably right it is a retainer. I though I read it as a charge for writing a letter of demand which shouldn't be more than a hours fee
We recently bought a house, and we granted the sellers' request that they be allowed to remain in the home for 7 days after closing. During this 7-day period, the sellers unbolted and removed a 20-foot length of custom cabinets that had been bolted to the garage wall.
These custom cabinets were specifically mentioned on a list of upgrades (on one of the brochures we picked up while touring the home).
We found out after the sellers moved out that in the agent remarks section of the MLS, there was a comment "garage storage cabinets do not convey." However, that comment did not appear on the Public Record sheet that we had (it looks pretty much like the MLS sheet, but was intended for potential buyers. We picked it up from the box attached to the for sale sign in the front yard).
The sellers, their agent, and the office broker are all refusing to make restitution. They are saying that the MLS comment makes it ok that the sellers took the cabinets. The state realty board told us (no surprise) that the signed contract supersedes all else (there was NO mention of the cabinets in the purchase contract).
The sellers & their realtor & broker say it was our agent's fault for not writing the cabinets in as an exclusion on the contract. It seems to me that the sellers' agent had the greater responsibility to look out for her clients' wishes. But either way, it was not in the contract. And, as I said previously, the cabinets WERE SPECIFICALLY listed in the marketing brochure!
We have a quote of $4000 to replace the cabinets. We also have a quote of $1500 from an attorney to send the sellers a letter regarding deceptive trade and breach of contract, and demanding restitution. If the sellers do not respond to that letter (hypothetical letter at this time), the next step would be court, very expensive of course. Our lease-back contract (that allowed sellers to stay in the house 7 days after closing) does say we are entitled to recover legal fees due to violation of the lease. They did violate the lease by "altering the property." (Basically, stealing from us, it would seem to me).
Any suggestions from the real estate professionals here?
It really does depend on what your contract states. In ours, we have added verbiage to clarify WHAT conveys with the house.....down to common sense items like wall to wall carpeting. We were having issues with these new "trends" of framed vanity mirrors that are just hung and not necessarily mounted, window blinds, etc. Sometimes I will repeat in the additional provisions specific items that are covered in this paragraph because there are so many agents that don't explain that to their client and I want it to be crystal clear what the buyer expects.
In the end, ANYTHING like that which COULD become an issue, I always write in the contract just so issues like this do not come up at closing. Your agent should have notified you that in the agent remarks in the listing that it stated those DO NOT convey. I would be looking at him/her to see what he/she is willing to do, as it seems the sellers had their agents cover them for this, at least from the listing perspective. It really does depend on if there is any standard verbiage in your contract that addresses this specific issue. If not, you probably have no recourse....or at least a legal fight that could end up costing you more money and stress than just replacing the cabinets.
My motto, when in doubt WRITE IT IN. I'm all the time writing in verbiage that in the end can be construed as "excessive" but in the end I have also never had an issue like this rear its head at closing.
Sorry that happened/ I remember our seller showing up and asking if he could take the mirror from the bathroom, he said he just out it up there to sell the house. I said no because it did not have that in the contract. Some sellers are creeps.
Maybe your agent carries and insurance for screw ups like this when they make them? Look into it.
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