FAIRFIELD-SUISUN, CALIFORNIA

Home Seller

Is the seller trying to cut out the Realtor? I’m not sure what to do

By From page HSR2 | August 02, 2014

Q: A number of months ago I stopped by an open house in Fairfield. I spoke to the Realtor about the property because my wife and I have been considering making a move before the interest rates go up. I put my name and phone number in her guest book and she contacted us a couple of times until we told her we were no longer interested. Last week a guy called me and said he was the owner of the house. He explained that the Realtor’s listing had expired. He told me he could now reduce the price about $15,000 since he was no longer going to be paying a Realtor. He wanted to know if my wife and I would be interested at the new, lower price. He gave me a week to get back to him. My concern is that it just doesn’t “feel” right that the agent gets screwed out of her commission even though she’s the one we spoke with. Frankly, I’m also a little miffed that this guy I don’t even know now has my cell phone number and address. Are there any repercussions for us if we choose to buy the house directly from the seller? And was there anything wrong with the Realtor giving our contact information to the guy in the first place? 

A: First of all, if the price is really that good for you I’d jump on the offer. Legally, you don’t have anything to worry about.

However, the seller may be in for a surprise. When you sell your home through a broker, the law requires that you and the broker enter into a written contract, called a listing agreement, before the broker can represent you.

There are two standard residential listing agreement forms used by Realtors. They’re provided by different companies, but are essentially the same.

These standard listing agreements include a clause that your seller clearly hasn’t read. It makes the guy liable for the full commission if he sells the home to someone who the Realtor initially introduced to the property. That liability period varies but often lasts for 120 days following the termination of the listing agreement.

In other words, even when the listing has expired the Realtor winds up getting paid if she was the initial reason the buyer, you, inquired about the property in the first place.

The purpose behind the clause is to prevent exactly this from happening. A seller hires a Realtor who uses her time and money to market the property while, all along, the seller intended to sell the property to one of the prospective buyers and cut the Realtor out.

The reason the seller had your name was because the Realtor gave the seller the name of every person she had shown the home to. She did this specifically so she could collect her commission if the seller sold the property to one of these people.

Besides, as the seller’s agent, the Realtor has to provide the buyer with any information she has that he wants. She works for him. However, this certainly isn’t your problem.

When the Realtor learns the seller has sold the property to you she will bring a lawsuit against the seller for the 6 percent commission. But again, it’s not your problem. Your problem is trying to conduct the sale without the assistance of a professional.

What type of contract will you use? Will it cover the most common issues that develop during the escrow period? What disclosures will you require the seller to give? How will you avoid the multitude of last minute problems that always crop up? Remember, Realtors do this every day and are very good at anticipating, and heading off, problems.

Keep in mind the list of things you don’t know about buying or selling a home goes on and on. Still, if the seller’s greed provides a unique opportunity for you, you’ll want to give it some serious consideration.

Tim Jones is a real estate attorney in Fairfield. If you have any real estate questions you would like to have answered in this column you can contact him at [email protected]

Tim Jones

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