Expert: Jessica Bryan - 12/27/2006

Question
Thank you so much for the reply. I have not signed anything agreeing to co-op with the buyer's realtor, so it appears I am not liable.  Are you saying the BUYER would be responsible for paying the commission if I don't?  

Thanks,
Margaret
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The text above is a follow-up to ...

-----Question-----
I have my home for sale by owner.  A real estate agent brought an interested party to look at my home.  The real estate agent called later to say there would be an offer coming that Fri.  Then she called to say it would be Sat. - that she would be at my house Sat. at 5 PM to present the offer to me.  This was 12/23 (2 days before Christmas).  When the agent did not arrive by 5:30, I called and got her voice mail.  I again called at 6 pm and got her voice mail.  At 7:00 PM she called to say she got a "late start" ad would be there shortly.  At 7:30 PM I called back and she stated she would be there soon.  I informed her I had errands to run for Christmas and really needed to do these.  She said she would just leave a copy of the offer in my mailbox.  When I returned at 9:15 PM from running my errands the offer was not in my mailbox.  Before I went to bed at 10 PM I checked the mailbox again and it was there.  The offer was not properly made out and the buyer had not signed the appropriate pages.  The expiration date on the offer was the date and time they made it out, so it was expired when I recvd. it.  The next day the buyer called to apologize and say she was appalled at this agent's behavior the night before and that she also had to cancel her plans because the agent got to her house to make the offer with her so late.  Now the buyer wants to fire her agent and handle the sale directly with me.  She is afraid, however, that the agent will keep her earnest money ($250.).  Can the agent keep the buyer's earnest money in this situation?  And am I obligated to pay this agent a commission?  And if so, do I HAVE to pay her as much as she is asking, or can I lower the percentage because of her poor performance.  I can't imagine dealing with this women through the entire closing process. I look forward to your advice.  Thank you.

Margaret
-----Answer-----
Dear Margaret;
I am so sorry about the agent's poor performance!  I think that the Buyer has a legitimate complaint that they can take to the Managing Broker or even to the Board of REALTORS since there may be some violations of agency rules.  However, since the agent was not representing you and there was nothing in writing that said that you would pay a commission to this agent you have no responsibility to the agent. (Unless you signed an agreement for compensation). You can go ahead and sell the home to the Buyer without paying the agent.  The buyer, however does have an agreement to compensate the agent and the agent has the right to ask for full compensation being the procuring cause of the Buyer finding the home and buying it.  If the agent included an agreement for compensation and you have not yet signed it, you don't have to sign it. If you already signed an agreement with the agent then you are required to pay a commission if you accept the offer.  My advice would be to turn down the offer and let the Buyer decide what to do.  They might fire the agent and come back to make the purchase of your home at a later date or with another agent.  I think that under the circumstances you would be better off not working with this agent who apparently has too much to do or too little courtesy to honor appointments in a timely manner.

Good luck and best wishes.

Jessica Bryan

Answer
Dear Margaret;
Yes...depending upon the Buyer's Agency Agreement it is possible that the Buyer might be responsible to pay a fee to the agent.  Different agreements are worded differently so I can't speak to all of them, but an agent who finds a property for their client is able to recover a fee for those services and if they find a property that is a For Sale by Owner property, they might be able to recover the fee from the Buyers.  It will be up to the Buyers to figure all of that out and if they choose to buy your property they should probably consult an attorney before going forward.

~Jessica Bryan