Expert: liznarr - 6/2/2006

Question
I signed a 6 month contract with my realtor. I have not been hapy with the service they have provided. In 5 months there has been little to no help from there end. I have not had any offers. I know the market in florida has slowed but all of the things that have been done like a bonus to anyone who sells the property and offering money towards closing and lowering of the price has come from ME. I have to call them (havn't recieved any calls from my agent unless she is calling me back. When I asked for a virtual tour to be added to my listing she has refused saying that its a waste of time and when I tell her that more has to be done since its not selling her response is that she is doing for my house what she is doing for all her clients and that the market is slow. This is a second home in Port St Lucie Florida. Its a new home with alot of new homes in the area fore sale. Finally my question is I have 1 month left on my contract and have a $500 pently for geting out early.(want to switch agents) What are my rights since i fel she hasn't held up to her end.Do I have to pay ? or should I see a lawyer ?

Answer
Hi John,

Yours is a question that is asked often.

A listing agreement is a legally-binding Contract and is interpreted as a bilateral Contract – meaning that each of the parties contracts and agrees to do certain things.  You agreed to list exclusively with your agent, and the agent agreed to basically put forth a good effort to sell your property.

You should look at your listing agreement and see what specific language is in it.  Also, were any specific promises were made to you by your listing agent at time of listing, verbal or otherwise?

If your agent agreed to represent YOU, and not a buyer, she is in a legally-binding Agency relationship with you.  If the house is not selling, and YOU are the only one who has initiated any solutions to help move the property (and your agent never calls you, except in response to your calls to her), I would say you probably have a good case to assert Abandonment and also Breach of Agency – especially if you asked for a virtual tour and your agent refused.  

Virtual tours if done by a professional, are an additional expense to an agent, and I’m guessing this is probably the reason she refused.  However, an agent can also accomplish a virtual tour by taking a multitude of pictures and placing them online with your listing by simply using a digital camera.  This is neither hard nor expensive, and at a bare minimum your agent should have done this for you in response to your request.  It sounds to me like you lucked OUT and have, in plain English, a lazy listing agent.  

In Agency Law, YOU as a Seller are the client.  YOU give instructions to the agent.  The duties included under Agency Law are care, confidentiality,  obedience (to obey your LEGAL instructions), accounting, loyalty, due diligence and disclosure.  Your agent is bound to take legal instructions from YOU.  If your property is not getting appropriate activity and you do not receive regulars “check-ins” from your agent, and you initiate all the calls and have asked for a virtual tour which has been refused; I would call your agent’s BROKER-IN-CHARGE (BIC) and explain everything that you wrote to me.  

The BIC is responsible for all actions of all agents working under him/her.  I can tell you that BICs do NOT like controversy over matters such as this, especially if you speak language that they are trained to understand, such as Breach of Agency and Abandonment.

I would suggest that you come on strong (but not obnoxious) to your listing agent’s BIC and try to appeal to the BIC’s human emotions that you hope are there.  Explain that you feel you have been literally abandoned by your listing agent (by her never initiating calls and staying in touch with you) and that you also feel the listing agent has breached her FIDICUARY duty of Agency by not taking your legal instruction by refusing to add a virtual tour on your property that has had little activity and no offers in a five-month period.

I would further explain to the BIC that you are not looking to create problems, but that you simply want to move on and work with another agent who will be responsive to your needs and put forth a better effort to sell your property.  Ask for an immediate, unconditional release.

If you encounter major resistance, you can always threaten to file a formal complaint with your State Real Estate Commission and also file a grievance with any Realtor Association the agent and BIC belong to.  I must tell you, however, that a grievance procedure can be time-consuming, and it is not a quick cure, but rather a punishment for the agent should you prevail.

If the BIC refuses to give you an unconditional release, I would then insist that (1) A public, ADVERTISED Open House be scheduled every Sunday for the remainder of the listing period, (2) that one AGENT Open House also be held, and (3) that the listing agent call you every other day with updates on any activity that may, or may NOT, be going on.  Make it tough on both the BIC and your listing agent; make them work for the next 30 days if they refuse to give you an unconditional release.  I would also insist on some type of newspaper advertising in your local newspaper for the remaining 30 days, even if it’s every Saturday (in addition to the Sunday public Open House advertising).

If these requests are refused, I would definitely call your Real Estate Commission and ask if you have the right (per your State laws and regulations) to file a formal complaint against both the BIC and your listing agent.

You can always go the legal route, but this can also be costly and time-consuming for you.

I hope the above helps.  Good luck to you and feel free to write again if you have additional questions.

Regards,

Elizabeth Narr