Expert: liznarr - 9/9/2010

Question
agent other listing agent asked to show house and i received offer. never received listing agreement from listing agent if i accept offer do i have to pay his%

Answer
Hi Greg,

I’m not sure from your question if you signed a listing agreement and never received a copy back, or if you NEVER signed anything at all with a listing company.  I’m going to give you some answers based on both scenarios.

IF YOU SIGNED A LISTING AGREEMENT, BUT NEVER RECEIVED A COPY BACK FROM THE LISTING COMPANY:

A listing agreement is a Contract between you as a Seller and a brokerage company for their services to list, market and negotiate the sale of your property.

I am not an attorney and cannot give you legal advice, but I am giving you my understanding of contract law as it is applied to real estate transactions where I live and work.  You should consult with a good attorney in your area to make sure you actually do NOT have a valid listing agreement and would NOT owe a commission.

Among other things such as the requirement for parties to a contract being of legal age and not under duress or under the influence of drugs or alcohol, a contract requires both delivery and acceptance to be legally binding.  

If you signed a contract with a listing company (in this case a listing agreement), it must be properly executed (signed and initialed in all places by ALL parties) and in proper form.  After all signatures/initials are in place, all parties have to accept an executed copy which must be “delivered” to all parties.  Only at that point would you have delivery and acceptance.

First of all, if you signed an agreement, your listing agent’s broker-in-charge (BIC) would also have to sign the listing agreement, because the BIC “owns” all the listings, not the agent – unless the listing agent also happens to be the B IC.

Even if you have a copy of a listing agreement you signed, if the BIC’s signature is not on the listing agreement, you do not have a copy of a legally-binding listing agreement.

If the listing company (even in the absence of a valid listing agreement) has your property in your local MLS, the SELLING company may believe that the listing company is obligated to pay them a commission of “x” amount (or percentage amount) of whatever is shown in the MLS printout.  The amount paid to a co-broke company (other than the listing company) for selling a listing is generally one-half of the total amount of commission you agreed to pay.

If you determine that you do NOT have a legally-binding listing agreement, I would suggest that you execute a separate contract with the SELLING COMPANY, detailing that you do not have a valid listing with “whatever-named company,” and that you will pay them “X” amount of money for their efforts to sell your home.

On the surface, and without knowing more of the details of your situation, it appears that you may not have a legally-binding listing agreement and you would, therefore, not be obligated to pay a commission to a listing company.  

I am advising you, however, to consult with an attorney and get legal advice after explaining ALL the facts in your situation.  The last thing in the world you need to do is to invite litigation if your facts are not all properly documented.

Just as sure as you enter into an agreement with the selling company to pay them a commission and exclude the listing company, I can see it coming:   If you SIGNED an agreement but merely never received a copy of the agreement, the “listing” company is going to suddenly produce a copy signed by the BIC and claim that they sent you a copy.

IF YOU NEVER SIGNED A LISTING AGREEMENT WITH WHAT WAS-TO-BE YOUR LISTING COMPANY:  This is a totally different situation, and I don’t see how you could be held liable to pay a commission for an agreement that you never signed.

Good luck to you, and feel free to write again if you have additional questions.

Regards,
Elizabeth