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I agree, but the seller agent has no fiduciary duty to the buyer. The seller's agent violated their fiduciary duties to their client by not putting in the exclusion, but the buyer hired an agent to have their back. When it is listed on the MLS as an exclusion the buyer agent should have seen that and acted accordingly. The OP is in the right based on the verbiage listed here, but the agent could have saved their client from this situation by reading the MLS.
For some reason sellers tend to see their garage fixtures differently than house fixtures. Attached shelving/storage/cabinets always get addressed out here in contracts even though they are legal fixtures. Since it isn't living space, I think sellers often get confused.
While the agent could have saved the buyer from this situation, the salvation would have been a contract that did not include the desired cabinets.
And, the seller agreed to convey the cabinets in contract with the buyer. That agreement is between those parties and seems to have been breached.
(Disclaimer: All I have made are spurious suppositions, over my pay grade, and without seeing a contract.)
I don't understand how people are arguing that it was the buyer's agent's fault.
First of all, the buyer had no reason to assume that a fixture was NOT coming with the house.
Yes, the agent should have informed them of this, but the buyer could not possibly have thought of asking if they would stay.
In the end, no parties who signed the contract pointed out the fact that it states all fixtures stay with the house but didn't make an exception for the garage cabinets. And why would the LA mention the cabinets in the listing if they weren't staying? There's a fine line between that and false advertising, no?
I agree, but the seller agent has no fiduciary duty to the buyer. The seller's agent violated their fiduciary duties to their client by not putting in the exclusion, but the buyer hired an agent to have their back. When it is listed on the MLS as an exclusion the buyer agent should have seen that and acted accordingly. The OP is in the right based on the verbiage listed here, but the agent could have saved their client from this situation by reading the MLS.
Very true...and I wasn't inferring that the Seller's agent had any duty to the buyer. As you have noted, the Seller's agent failed to best represent the interests of their client by neglecting to include the exclusion in the contract. The fault also rests with the Seller, since it was their contract. (But it's understandable why they should now be upset with their agent.)
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? Knowing that any exclusion would need to be written into the contract, they could have purposely allowed the cabinets to convey. It wouldn't be the first time that a Buyer's agent took advantage of an unwitting Seller's agent. (But this is pure speculation--they may not have had a clue about the omission either.)
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.
I don't understand how people are arguing that it was the buyer's agent's fault.
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.
After stepping back and re-reading, I think the sellers could be charged criminally with theft by removing the cabinets after closing unless it was made clear at closing that they would be doing so and approved by both parties. Both agents in this transaction do share some responsibility IMHO.
Yes, that was a good suggestion. I'll google how specifically to file such a complaint, or perhaps you have some good advice. Is it as simple as me writing a letter to the broker and agent? Or a specific process through the BOR?
I'm not familiar with Texas procedures, so you should get some local advice on that. Perhaps your agent can direct you to a source for information or even help you with a filing...or you may want to consult with an attorney to do it correctly. (Make sure that any filing is well documented and complete--you probably only have one shot at getting it right. Given the dollar amount involved, I'd probably try to do it sans attorney, but that's just me.)
I just know that in Michigan we have a special form to fill out whenever someone files a complaint against a person or entity licensed by the state. In Michigan, the state also prefers to have the parties first try to work out a resolution to the problem. But I wouldn't try to deal directly with the seller's broker and agent unless you have clear direction to do so. Again, consult with someone local who is knowledgeable about this.
I'm not familiar with Texas procedures, so you should get some local advice on that. Perhaps your agent can direct you to a source for information or even help you with a filing...or you may want to consult with an attorney to do it correctly. (Make sure that any filing is well documented and complete--you probably only have one shot at getting it right. Given the dollar amount involved, I'd probably try to do it sans attorney, but that's just me.)
I just know that in Michigan we have a special form to fill out whenever someone files a complaint against a person or entity licensed by the state. In Michigan, the state also prefers to have the parties first try to work out a resolution to the problem. But I wouldn't try to deal directly with the seller's broker and agent unless you have clear direction to do so. Again, consult with someone local who is knowledgeable about this.
Thanks Jack. Your posts have been very helpful. I talked with our realtor again tonight, and she talked me through the process of filing a complaint against the other broker with TREC (Texas Real Estate Commission). She is willing to help me compile all the documents and her emails to and from the other broker, etc. There were actually several things said and done by the other broker during the process that had me quite upset, so I can address all of those things in this formal complaint. I now feel confident that this is the way to go.
And thanks everyone for your input.
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