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We have been listed close to 3 months with a seller's agent, this agent has not advertised correctly for three open houses, provides zero feed back and does not follow through on things. We have asked for a termination of the contract- he said noe problem but now wants to list the house as an expired listing. He has told us that this will terminate our contract except for the previous showing. He states this will be easier and less paperwork.
If we sold the house privately, without any assistance will the agent still be entitled for a % even though he wasn't involved and the listing was terminated?
I can't imagine why he would want to list it as expired and have that benefit you. The lingo may be different where you are but you do want a termination. If he "won't" give it to you, then contact his broker.
Check your listing agreement carefully, if the listing were to expire or you terminated without cause, he very well may be entitled to a commission. There may be verbage to indicate that if the house sells within 90 days after the listing ended, he would be entitled.
I think you should get a straight out termination and check the verbage on that contract.
Choice C - you know you could stay with the same broker/company and just ask the broker for a new agent. It seems everyone would be happy in that situation. The broker would get to keep you as a client and perhaps you will get a new agent more suitable to your liking.
In either case, depending on the wording of the listing agreement, you may owe him if you sell to someone who viewed the house while he had it listed. For example, our listing agreement contains a "protection period" following the end of the listing for whatever reason during which time if the house is sold to someone who was brought to the house as a result of our listing it, we get our commission. We do have to provide a list of names within a specified number of days after the listing ends, however. This is mainly to protect agents from those sellers (and buyers) who will wait until after the listing ends or terminate the listing and then sell it FSBO to a buyer who found out about it through the efforts of the original listing agent, thus cutting the agent(s) out of the deal and their commission. (Yes, there are people who will do that kind of thing, sad as it is.)
However, if the house is listed with another agent after termination or expiring, this paragraph doesn't apply.
You'd need to check your listing agreement to see if there is something similar contained in it.
They have similar protection period clauses in both Oregon and California, but they apply even if the property is sold by another listing agent. We have a limited number of days to give a list to both the owner and the new agent.
I agree with twojulybabies, you should contact the managing broker and tell them what is going on. As a former broker myself, I always appreciated knowing what was going wrong. I couldn't fix a problem I didn't know about. Since agents contract to brokers and are not employees of a company, we can't go poking around in their business. But the contract you signed is with the company and they often can and will do whatever it takes to keep you. See what kind of offer they will make you.
GnosticCyn is right, I would go to the broker and tell them you are not happy with the current agent and that you want the contract terminated with them. If you show them cause as to what the agent did (or in your case did not) do even if there is a protection clause in the contract, they may provide you written notice they will waive the protection cause in the contract. But you should give the brokerage an opportunity to fix the problem, and then if can't be worked out in a satisfactory manner with both you and the brokerage, they may waive...a brokerage would rather lose out on one commission in this matter, rather than risk having a word of mouth reputation that they are not a good brokerage to work with.
It would be to your benefit to get a release and then start over fresh. That doesn't mean you couldn't still interview agents from this same brokerage. But you have given them a chance and they let you down, so you shouldn't feel bad about terminating.
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