Expert: Sue Bernstein - 10/22/2006

Question
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The text above is a follow-up to ...

-----Question-----
Hello,

I entered into a contract to list my property with an agency beause an offer I made to purchase a home was accepted contingent upon selling my home.  I'm out of contract for the purchase of the home I made the offer on (it was to close escrow in 45 days after acceptance of offer).  I no longer want to purchase the other property so I no longer want to sell my home.  I brought that to my agent and she told me that I owe her her commission because I have not given her the entire listing period to sell the property and I'm breaching the contract.  I always thought the listing period was to give the agent exclusive right to sell the property so I can't use another agent to sell my home within that period.  This is causing me a lot of stress because I feel like I'm being cornered into selling my home when I don't want to anymore.  Do I really owe her commission even though she has not brought me any offers, I have not accepted any offers?

Thanks!
Yi-Chen
-----Answer-----
Dear Yi-Chen,

You are absolutely right. In your contract you agree to pay her commission when you receive an offer meeting all the terms of the listing contract.  You are not breaching the contract.  You have asked to be released.  Most agents would release you.  If she refuses to release you from the contract keep your house listed just don't allow any showings and wait out the contract time.  If she continues to insist on you paying her a commission you can file a complaint with her local board of realtors as well as the department of real estate.

Good luck and I hope this helps.

Sue Bernstein
www.SueBernstein.com

Hi Sue,
Thanks for the prompt reply! If she refuses to release me and I deny open houses and appointments to show will I be violating the part in the contract that reads "If, without Broker's prior written consent, the Property is... made unmarketable by a voluntary act of Seller during the Listing Period"?   

Thanks again,
Yi-Chen

Answer
I have never seen that in a listing contract and this may make a difference.  What state are you in and is this the standard contract?  If your agent belongs to a larger office (not working for self) contact manager and explain the situation.  State that you are only requesting a conditional cancellation and that if you put your house on the market within a set time period from now (eg 1 year or 6 months) they will still have the listing.  I have never really heard of a realtor going after a listing commission when the house is being taken off the market.  It is not a good way to spread good will among the community as I am sure you will tell everyone you know about your experience with that agent and agent's company.  In the California listing agreement it states that you owe commission if you are brought an offer that meets all the terms of the listing contract.  That means that unless you get a full price offer you do not have to accept it and are not liable for a commission.  If you have a keysafe on your house insist that it be taken off.  You do not have to have open houses.  You can set the showing times and it doesn't have to be 7 days a week, 24 hours a day.  Make it that you have to be home for all showings.  With that you don't have to be available every time a showing is requested.  How much longer do you have left of the contract?  Your house doesn't always have to look neat and clean. There are always ways without being in violation of the contract.  Get advice from another realtor in your area.
Let me know if any of this helps.

Sue Bernstein