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Thanks for reading this. My husband and I have been wanting to move to NC for a year now. We tried selling our house on our own but had no luck. Last July we listed with an agent with an agreement for 2 months. During that time he showed our house once. The buyers seemed interested and presented a contract through their realtor. We counter-offered with slightly different terms. We waited and did not hear from our realtor. He said he was having some personal issues with death in the family so we were patient. Still we got no feedback from him. We kept calling and he said that the other realtor had not shown an interest. We decided not to renew our contract with our realtor. That same month, the realtor for the seller contacted us and we ended up selling the house with terms identical to those in our counteroffer through our realtor (so obviously they were interested all along). We closed in Nov. Today I get an e-mail from an attorney saying that we are in breach of contract and that we owe them the commission for the sale. We are shocked but according to them we could not sell to anyone they had brought to us for 6 months. We really did not know this nor did we wish to exclude our realtor. He really did not follow up and this sale would have been lost if we had stayed with him. We were ready to pay the commission had he followed through. Now we realized we made a mistake by agreeing to sell to the original buyers. Should we contact an attorney or just pay (it is quite a large sum which we need to move to NC), Thanks in advance for any suggestions.
Your attorney can probably show that the realtor breached the contract by not handling the original transaction in a timely manner.
A letter from your lawyer may very well make the first realtor disappear. This is probably a fishing expedition to see if the realtor can extort money from you.
Which is going to be cheaper, the lawsuit to save the commission, or paying the commission and forget it.
The agent should have had someone cover him if he was not available, so that is definitely an error.
Your listing agreement would have in it a clause that protects the agents commission for a period of time. That is to prevent an owner from canceling the contract in order to have a buyer bypass the agent.
If you decide to fight this, then the first thing you need to do is to show your attorney that listing contract.
If you can prove breach of contract then you may not owe the commission, but you will not be able to get punitive damages for breach of contract, and you may not be awarded your attorney fees. The agreement may also call for arbitration.
So check the agreement, consult with a real estate attorney, then determine which is the most economical way for you to proceed.
I am not taking the side of the agent because from what you said, this agent did not perform properly. If he could not get someone to cover for him then he should have asked his broker.
If it look like it will cost you more money by going to an attorney, then you can file a complaint with your state real estate department, and the local Realtor Association. That may be your best option. That's why the attorney you talk with should be a real estate attorney so you can ask about those alternatives.
Most contracts have stipulations like the 6 month one you are talking about. They are void, when you relist with another agent, but the purpose of the clause is to prevent people from going behind the back of an agent.
The biggest issue that you are going to have is showing that your agent failed to provide the service as indicated in the contract. You would need to somehow show that you attempted to contact him on several occasions and he failed to call you back.
I would file a complaint with your state real estate board. That behavior would violate our Oregon laws for fiduciary duties. Did you get a copy of the counter offer that was rejected by the potential buyers? I would go to the local real estate agency site for your state. It will give you a list of the fiduciary duties that your agent had to you. It sounds like he violated those.
Then I would write a letter to the agent explaining his violations, and file a complaint. The cost of the lawsuit will be more than the commissions, I would think. I agree with Captain Bill's advice that take your listing agreement to an attorney and get some consultation. You will want a real estate attorney who understands agency laws.
In principle, I would say don't pay it, as the real estate agent appears to have done nothing to earn it, and in fact may have abandoned you as clients. The difficulty will be in demonstrating that fact. Best thing to do is talk to an attorney to see what he thinks your odds are, and then decide if the cost im money & time of refusing to pay it will outweigh the fee itself. In any case, I would file a complaint with the local Board of Realtors (if the agent is a Realtor) and the local licensing board.
We really did not know this nor did we wish to exclude our realtor. He really did not follow up and this sale would have been lost if we had stayed with him. We were ready to pay the commission had he followed through. Now we realized we made a mistake by agreeing to sell to the original buyers. Should we contact an attorney or just pay (it is quite a large sum which we need to move to NC),
First, this is a good lesson for everyone...READ and UNDERSTAND the contracts you sign..including listing agreements. They are contracts.
Second, everyone is assuming the Realtor® did something wrong or didn't do what he was supposed to do. He actually may have been told that the customers were no longer interested...and then, they changed their minds. For all you know they may have been trying to work out something on another house, it didn't work, and they came back to yours. Because you were no longer listed on the MLS and the other agent (who knows FULL WELL what your listing contracts are all about) who gleaned your information from the first contract, came directly to you. A commission is owed to the agency that listed you. Now, I don't know, did you sign a commission form with the one who brought the customer? Is it on the contract somewhere that you would pay the one who brought the customer? Should part or all of what you paid the one who brought the buyer be going to the original listing agent? Or, should you be paying it all out of your pocket to the listing agent? Only an attorney can answer those questions, so get thee to an attorney.
And, last but not least, your sale would not have been lost had you relisted the property with the agent or listed with another. It would have been on the MLS and the agent that brought the buyer would have had to go through the listing agent just like they did the first time. IMO, that agent put you in the position you are in now, not the first...although if they were a buyer's agent, they had no obligation to help you through the transaction. Just a question, that has no real baring here, I'm just curious, what percentage did you pay the person that brought the buyer?
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