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Question
I am in the process of a divorce, my wife and I agreed to sell the house to come to a money settlement. We signed with a realtor and began showing the house. I have since been given financial aid from my family and do not want to sell the house. My realtor had presented an offer that meets our asking price. We have not accepted it either verbally and have signed nothing.
I told my realtor I do not want to sell the house. They now are saying the buyers agent is threatening to sue my realtor.
They are wanting the full 6% commission in lieu of not selling.
What options do I have, I can not financially pay anything, I am totally taped out.
If I must make a counter offer to the point of refusal what can I ask for? They want $5000 towards closing cost, 6% commission for buyer and seller agent split.
I am thinking of buyer to pay closing costs and agents 6% commission. Is there anything else to send this buyer away?

Answer
Hi Bill,

I really do not like to hear stories like yours.  The real estate professional is a service business, and a client’s wants and needs should always come first.  I am so sorry to hear that your agent is giving you a problem, especially since you have not responded either verbally or in writing at this point.

It has always been my belief that in the absence of a properly-executed Contract of Sale, you should not have to be forced to sell your home when your circumstances have changed—as yours clearly have.  

You should consult with a good real estate attorney in your area for advice, but I am going to give you my thoughts below which are based on my 28 years of real estate experience, which should NOT be considered legal advice because I am not a licensed attorney.

If YOUR Realtor is insisting that you pay them a six percent commission in lieu of not selling, tell them to go to the rear of the line.  This statement alone is indicative to me that they rightfully believe that they cannot at this point, and in the absence of a properly executed Contract (signed off by all parties) force you to sell your home.  This speaks to me more in terms of your listing brokerage company simply wanting money if you do not sell your house.

I have always been schooled that if full list price is not offered, and in CASH (i.e., no contingency for financing in case the Purchaser cannot or does not qualify for a loan), and with NO OTHER CONCESSIONS being paid by the Seller, you are not obligated to sell your home.

If your Realtor listed your home and put any comments in the listing such as, “Seller will help pay Purchaser’s closing costs,” UNLESS YOU AUTHORIZED THIS IN WRITING, you are under no obligation to pay any closing costs, period.

If after you speak with a good real estate attorney, you are advised to counter, I would counter the offer as follows:

1.   Full Price
2.   No closing costs of Purchaser to be paid by Seller
3.   Must be a cash sale, with no financing contingency.
4.   Closing must occur within 15 days, with no extensions under any circumstance.  Also state that “Time is of the Essence.”
5.   State that unless your counter offer is accepted by Purchaser (as you mark it up and send to Purchaser), signed off by Purchaser and an executed copy returned to you within twelve hours, six hours (or whatever amount of time you want to give the Purchaser –and write in the time for their acceptance and your receipt thereof, so that there can be NO misunderstanding about your time period ), your counter offer will be WITHDRAWN and will be null and void at that point and you will NOT counter again, period, end of story.  Don’t play around.  You don’t have to be obnoxious, but just very assertive.  
6.   NO personal property of Seller will convey with the sale.
7.   If the offer asks you to pay for ANYTHING on behalf of the Purchaser, REFUSE and write in that you will pay ZERO.  Many standard real estate contracts call for a clear heating and air conditioning letter, and a clear termite and water damage letter.  Language within a contract might say that if any defects are found, SELLER will correct these items at Seller’s expense.  In a case like this, strike out the word “Seller” and write in “Purchaser,” to read that any defects will be paid for by Purchaser.
8.   If Purchaser asks to be able to do a home inspection, allow that; but write in that any home inspection performed is to be PAID FOR BY PURCHASER and will be for Purchaser’s information only, and that you will NOT PAY for any repairs or correct any defects, period.

If your Realtor balks at writing any of the above information in your counter offer, remind him that YOU are his Client, and that he and his BIC have a legal obligation to honor all LEGAL instructions from you; otherwise, they will have breached their Agency agreement with you by virtue of your listing agreement.  Unless both your agent and his BIC are NOT representing you, they are both obligated to you by law of the fiduciary duties of Agency as their Client.

Here is a link where you can read up on real estate agency law:
http://realestate.about.com/od/realestatebasics/p/fiduciary_duty.htm

You can also search on Google or other search engines for other sites to educate yourself more on the topic of Agency.   

If your written listing agreement states that you will pay a six percent commission at closing (to be split, I assume, equally between the listing and selling agents), I would think you are bound to that obligation if you do, in fact, end of having to sell your house at full listing price.  For anything less than full price, I would say that would be a negotiable item, unless your listing agreement states something otherwise.

In the meantime, if you have a lockbox on your property insist that it be taken off IMMEDIATELY.  If your Realtor does not agree to do this, take it off yourself by removing your door handle and or lock and putting another handle/lock on.  This way, no one will have access to your house.

I am not anti-Realtors or anti-real estate agents, but in a situation such as yours – and where your circumstances have clearly changed from the time you listed your property—just because something “might be” legal, does not make it morally right—and what your agent is trying to force you into now that you have the means to stay in your house that you want to keep is, in my opinion, MORALLY wrong, any way you look at it.  Going through a divorce is stressful enough; you don’t need a Realtor adding to your stress.

If you have not already talked with your agent’s Broker-in-Charge, call the BIC ASAP.  Explain your situation and politely ask that you be given an unconditional Release from your listing agreement.  If the BIC refuses, he/she is part of the problem.  You might ask the BIC if he refuses, is he willing to risk any bad PR his company might receive as a result of his decision and if a six percent commission would be worth it.  If your agent and/or the BIC have incurred any advertising expenses and they will provide you with receipts for same, offer to pay their actual out-of-pocket expenses, but not Six Percent.

I hope the above points you in a direction that helps you out of this situation.

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

Regards,
Elizabeth

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liznarr

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I can answer questions relating to the purchase and/or sale of residential homes and land, including what a really good agent should be expected to do and/or not do; where to turn when problems occur; and questions regarding disclosure. I`m a Licensed Realtor in the Southeast since 1984 with designations of Broker, GRI, CRS, and CBR (Certified Buyer Representative). Current active and Life Member of Million Dollar Club, Certified by State Real Estate Commission to teach Pre-Licensing and Continuing Education courses, specializing in Agency. Currently serving on Grievance and Professional Standards Committees, and Education Committee in past.

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