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You are so completely unknowledgeable about the workings of the sale of real estate, you have no business commenting on threads.
I disagree with this. It is one of the main justifications for a high commission fee, and I think it is a fair justification. Brokerages are businesses, and if they take all the risk the reward is higher.
We can have lower real estate fees, but it means consumers pay as they go or guarantee payment.
Not sure why you would be so insulting to someone. She is welcome to express her opinion on here.
I apologize for my tone and blame it on bad personal day plus hearing one too many times about agent's unfair monopoly on the MLS. Plus the insinuation that a single agent earns the entire commission in it's entirety for doing nothing more than sticking a sign in someone's yard. (And, of course, unlocking the door.)
Never sign a listing agreement with the clause "ready, willing and able". Never! Only agree to pay a commission if the agent finds a buyer that closes on the sale. I have had agents disappear after a sales contract was signed, and threaten to sue me, or side with a buyer wanting changes, etc. Never do this: that clause is too indefinite. Closing is an action, and can be defined; ready willing and able is intent, and not observable behavior. I'm ready willing and able to do a lot in life; however, I do very little in actuality.
Never sign a listing agreement with the clause "ready, willing and able". Never! Only agree to pay a commission if the agent finds a buyer that closes on the sale. I have had agents disappear after a sales contract was signed, and threaten to sue me, or side with a buyer wanting changes, etc. Never do this: that clause is too indefinite. Closing is an action, and can be defined; ready willing and able is intent, and not observable behavior. I'm ready willing and able to do a lot in life; however, I do very little in actuality
I am in the process of taking the Florida Bar Exam and saw the question (oddly, when I was looking for a specific definition of a similar term), and saw some replies that can get you in hot water!
You have a contract with your real estate agent. The contract is a bilateral promissory agreement wherein you (the seller) will pay him a per-determined fee (percentage or flat fee) in exchange for his selling your house and expending effort and costs to do so. A contract requires in every state some basic elements: Offer, acceptance, consideration and performance. The offer is just as it says. (I will sell you my book for $10.) Acceptance is a manifestation that you accept. (I hand you $10 or say, "I'll take it for $10.) Consideration is something that a person gives or does to their detriment that is to the others benefit. (The consideration is the loss of $10.) and the performance is the giving of the book to the buyer upon carrying out the transfer of the consideration. It's bilateral since both the buyer and seller are giving and taking something.
In you case the consideration is in the form of promises to one another. You to pay him conditioned he finds and buyer, he to expend effort to find a buyer in consideration for you payment of a commission. Since it's impossible to tell how far in the future it will be before you find a buyer (especially now), the expectancy is that he will find you a buyer and you will sell based on the agreed minimum prices you agree upon. If you decide after he works for a year that you don't want to move when he gets a reasonable buyer before you, he can sue for breach of contract and recover for what is known as "quantum meriut", or the fair value of the effort he put into selling (or trying to sell) your house.
Of course, he doesn't just have you by the short and curlies is, as one poster put, comes to you with an offer for $1. There are various "implied covenants" in all contracts. Unwritten rules that all agree upon. One is the Covenant of Good faith and dealing. In other words you imply that you will pay him if he gets you a reasonable offer/buyer. He agrees to find and bring forward only reasonable buyers before he can say "pay me".
Be proud you are actually READING a contract. Considering the amount of $$$ you are dealing with, if you don't understand something, pay a few dollars to an actual lawyer to review and explain the contract instead of posting on a blog where every 15 year old or 15 IQ is giving their 2 cents worth.
Never sign a listing agreement with the clause "ready, willing and able". Never! Only agree to pay a commission if the agent finds a buyer that closes on the sale. I have had agents disappear after a sales contract was signed, and threaten to sue me, or side with a buyer wanting changes, etc. Never do this: that clause is too indefinite. Closing is an action, and can be defined; ready willing and able is intent, and not observable behavior. I'm ready willing and able to do a lot in life; however, I do very little in actuality
Actually, "ready, willing and able" is a term in contracts that will supplant a condition of time and/or support consideration in the event of a possible breach of contract. For example: Let's say you agree to sell me Blackacre for $300K. We make a contract and I pay you $100K down, with another $100K in 10 days and the balance on closing in 30 days. Before closing and before the second payment, but after I paid $100K, I discover you may not have clear, unencumbered title to Blackacre. I suspend all further actions payments until you prove clear title, or I sue you. But to prove that I was an aggrieved party (victim), I can prove that I am ready, willing and able to purchase if he get's clear title by the agreed closing date. Legally, as long as he can obtain clear title, or make the title clear by your final purchase, he is not in breach. But to protect the rights of the buyer, you have to assert you are ready, willing and able.
Another reason is when time may be a factor. Let's say you want to buy home that be going on the auction block. You register with the seller and make an agreement that you, on a set date, will be ready, willing and able to purchase the home if you win the auction. That means you have sufficient cash in the bank or a committed lender. By making that statement, if you win the auction and later come back saying, "Gee, I didn't get the loan" or "Gee, I spent the money on Enron stock", you are then in breach and perhaps subject to liability for fraud.
A lot of people are looking at contracts as being, somehow, unilaterally binding. Generally, that's not accurate. If I contract with you to sell your home and the agreement is that you have to be "ready, willing and able" to buy if I look for a buyer, then you are may not be liable. Think about it: There is no detriment on his part. You agree to pay (your detriment/consideration), but he can choose whether or not to even accept. In fact, there is no acceptance to your offer. The agreement is illusory and therefore voidable.
Again, just because a term is absolute doesn't render it unfair or once sided. You need to take the entire contract as a whole. And if you aren't sure, get an attorney! A person who represents themselves has an idiot client.
Read it again. Doesn't it say something like, ready willing and able buyer with a cash offer at the price you ask? It means that you would accept those terms and why wouldn't you? If there are other things about the offer that you don't like you can counter them, like amount of earnest money, how many days the inspection is, closing date and whatever else is in the contract. I wouldn't worry about it.
Actually, "ready, willing and able" is a term in contracts that will supplant a condition of time and/or support consideration in the event of a possible breach of contract. For example: Let's say you agree to sell me Blackacre for $300K. We make a contract and I pay you $100K down, with another $100K in 10 days and the balance on closing in 30 days. Before closing and before the second payment, but after I paid $100K, I discover you may not have clear, unencumbered title to Blackacre. I suspend all further actions payments until you prove clear title, or I sue you. But to prove that I was an aggrieved party (victim), I can prove that I am ready, willing and able to purchase if he get's clear title by the agreed closing date. Legally, as long as he can obtain clear title, or make the title clear by your final purchase, he is not in breach. But to protect the rights of the buyer, you have to assert you are ready, willing and able.
Another reason is when time may be a factor. Let's say you want to buy home that be going on the auction block. You register with the seller and make an agreement that you, on a set date, will be ready, willing and able to purchase the home if you win the auction. That means you have sufficient cash in the bank or a committed lender. By making that statement, if you win the auction and later come back saying, "Gee, I didn't get the loan" or "Gee, I spent the money on Enron stock", you are then in breach and perhaps subject to liability for fraud.
A lot of people are looking at contracts as being, somehow, unilaterally binding. Generally, that's not accurate. If I contract with you to sell your home and the agreement is that you have to be "ready, willing and able" to buy if I look for a buyer, then you are may not be liable. Think about it: There is no detriment on his part. You agree to pay (your detriment/consideration), but he can choose whether or not to even accept. In fact, there is no acceptance to your offer. The agreement is illusory and therefore voidable.
Again, just because a term is absolute doesn't render it unfair or once sided. You need to take the entire contract as a whole. And if you aren't sure, get an attorney! A person who represents themselves has an idiot client.
A "potential" lawyer disageeing with something. Uheard of.
In many legal issues there are two lawyers. One saying nay..one saying yea. Remember one thing, the chances are they are both working based on billable hours so it more depends on how much one is willing to pay then most anything else.
Wrong or right, pay me and you are more correct then the ones not paying me.
Law education or not guy....review billable hours and be ready to discuss....especially if some law company wants to interview you...like answer...yaba..yaba..yaba..but it really depends on who is paying.
Is the glass half full or half empty? Are you paying me to fill or empty the glass?
Because the seller wants me to do a job for him. If he hires me, then I have demonstrated at least enough skill to convince him I can get the job done. If you as a seller want to ask me to put in some protections against me doing nothing, then by all means feel free to ask. I know that I wouldn't have any issue with it. I'll write in a set of minimum efforts if that will make you happy. But I can't let you have the ability to use all my work & time, then leave me with nothing for it.
The other thing you & I understand is that this is mostly an acedemic discussion. I don't think that there is or will be a rash of homesellers suddenly backing oout of the contract that appears ready to closde.
What happens when my definition of hard work and yours differ? And why did you use the language minimum efforts?
I had a realtor who took horrible pictures, wrote a bad description, refused to commit to a date for an open house and I had to get on him about all of that. I told him to take new pictures (what if you think yours are great and I disagree?), I re-wrote the description (gee, isn't this his job but I happen to be more educated in this area and a better writer and I didn't want him botching this part), and he even used the ridiculous excuse of a THUNDERSTORM ROLLING IN as a reason to not commit to a date for an open house. Um, this is the desert. He caused me stress. I did not hire him to cause me stress.
Due to his obvious incompetency or unwillingness to market the property correctly, I got out of the contract after a month. I signed on with an agency that has a professional photographer on staff - made my house look better in the pics than it did in real life. Four days later my house was prominantly featured in the leading newspaper (and no small ad) for an open house. The former realtor saw no reason to advertise.
So I don't mean to diss realtors, but there are realtors and then there are better realtors.
I agree with another poster to strike the clause and, if the realtor refuses, I'd get another realtor. The idea is to sell the house and close. A good realtor will get that done and do more than just bring someone ready, willing and able to the table.
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