What would you do?

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Dan Coursen, Licensed Real Estate Agent, IN

Date: September 4, 2007, Number of Replies: 19

I had my step-mom's condo listed since May 1st. This is an estate sale and her ex-husband is the executor. Thursday I had a showing and I called the agent to ask for feedback. She said that her client is a transfer in from another part of the state and is going to make an offer. I told her that we needed to get it done by midnight Saturday because it is going to expire and the executor has signed a listing contract with another broker to start listing it Sunday. The buyers agent calls me Saturday morning and tells me that her client left work early on Friday to go home and won't be back until Tuesday so this other broker is going to get a sale without doing any of the work to procure the buyer. I am curious as to what you would do if you were me and what would you do if you were the agent who took over the listing.

Dan Coursen/Realtor Carpenter Realtors Noblesville, IN

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Carol Harris Licensed Real Estate Agent, Prince George, VA

Date: September 5, 2007

Hey, I am a 6 year realtor but as we all know, there is always something out there that you don't know how to handle. As for your problem of "What would you do" concerning the expiration of a listing agreement for your step-moms condo. If your listing agreement is like ours it provides a "grace period" or a specific number of days(a blank you fill in) which after the expiration date you are still due compensation if you showed or "procurred cause" for the expired listing. I always put 120 days in the blank. I personally would ask the executor of the property for an extension of one week, and to hold off listing the property until that time with the new agent to allow time to have the contract in hand and accepted/negotiated. If you have the "120 days" clause in the current listing contract wouldn't he be responsible to pay your commission as well as the new listing compensation as well otherwise?(Which could be a determining factor with the new listing agreement) It is a question only a pro could answer, so good luck and maybe my comment will give you some direction for some good questions to your broker. Gook Luck!

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Andrew Wetzel, mba Licensed Real Estate Agent, Havertown, PA

Date: September 5, 2007

You said: Thursday I had a showing and I called the agent to ask for
feedback. ...I told her that we needed to get it done by midnight Saturday
because it is going to expire and the executor has signed a listing
contract with another broker to start listing it Sunday. ... so this other
broker is going to get a sale without doing any of the work to procure the
buyer. I am curious as to what you would do if you were me and what would
you do if you were the agent who took over the listing.

I say: Stuff happens. Once in awhile we all get listings sold with little
effort and other times we lose out. In your case, I wonder why you would
ever tell another agent that they need to get you an offer before your
listing expires so that you can get paid. Regardless of whether you feel
"entitled" to the commission or not, something led to the executor's
deciding to give the listing to somebody else and making arrangements to do
so before your listing actually expired. That is the heart and essence of
the situation. Rather than complaining about your "bad luck", perhaps you
should look inward and wonder what made your client uncomfortable with your
services and then ask if the fact that you even bothered to pose this
question on this forum supports the ex-husband's decision to use someone
else. What could YOU have done differently?

This may all seem harsh but it is the reality of this business. You lost
the client before you even had the chance of earning the sale. Rather than
pose your question, tell us what you think the buyer's agent, the new
listing agent and perhaps your "soon to be former client" owe you.

Andrew

Andrew Wetzel, MBA
ABR/ CSP/ e-PRO/ GRI/ REALTOR/ MEDIATOR
Century 21 Alliance
1100 West Chester Pike
Havertown, PA 19083
Buyer & Seller Agent Licensed in PA. (RS 213448L)
Office: 610.853.2700 x604/ DIRECT: 610.853.5604/ Cell: 610.457.0831
andrew@AndrewWetzel.com
Visit www.AndrewWetzel.com today to view properties!

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Gloria Handley Licensed Real Estate Agent, Chandler, AZ

Date: September 5, 2007

Our listing agreement here in AZ has the same wording. If the seller sells the house to someone that saw it or inquired about it during the time I had an active listing then I am due my commission.

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Andrew Wetzel, mba Licensed Real Estate Agent, Havertown, PA

Date: September 6, 2007

Our contract in PA has a "protection clause" with three components (I do
not know what your listing contract says as far as this).

First, the offer must have been "procured" during the actual listing
period. Two, the offer must be received within whatever time frame you and
the seller/ executor agreed to as far as the "protection period" (I use 30
days and explain the clause in detail). Three (and most important in your
case), the seller cannot have entered into a new listing contract with
another agent: if they have the rest of the clause is meaningless.

As one reply mentioned, you can conceivably go back to the executor and
discuss the matter with him but, based on what you wrote, they have already
signed another listing contract so they can say whatever they want but the
"next agent" is already waiting and may technically be due a commission if
an offer gets signed after their contract goes into effect. I do not like
the idea of your calling the new listing agent at all: if there is any
decision making that can be made (I don't think there is) it is the
executor's.

Here is a thought: how about increasing the split to the buyer's agent if
they can deliver an "executable" agreement before your contract expires?
Of course it would have to be "executed and delivered" while your contract
remains in effect and it does not appear that you are on strong ground with
the executor. I don't know what your contract says so I don't know the
ramifications if you are negotiating a sales contract while the listing
contract changes agencies.

Andrew

Andrew Wetzel, MBA
ABR/ CSP/ e-PRO/ GRI/ REALTOR/ MEDIATOR
Century 21 Alliance
1100 West Chester Pike
Havertown, PA 19083
Buyer & Seller Agent Licensed in PA. (RS 213448L)
Office: 610.853.2700 x604/ DIRECT: 610.853.5604/ Cell: 610.457.0831
andrew@AndrewWetzel.com
Visit www.AndrewWetzel.com today to view properties!

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8:36 AM

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gbcosta@yahoo.com

Date: September 6, 2007

had my step-mom's condo listed since May 1st. This is an estate sale and her ex-husband is the executor. Thursday I had a showing and I called the agent to ask for feedback. She said that her client is a transfer in from another part of the state and is going to make an offer. I told her that we needed to get it done by midnight Saturday because it is going to expire and the executor has signed a listing contract with another broker to start listing it Sunday. The buyers agent calls me Saturday morning and tells me that her client left work early on Friday to go home and won't be back until Tuesday so this other broker is going to get a sale without doing any of the work to procure the buyer. I am curious as to what you would do if you were me and what would you do if you were the agent who took over the listing.

Dan Coursen/

REply: Since it wil be listed with another company when the contract actually come in, I do not think you can do anything. If it had just expired and was not listed you maybe able to claim the commission. My listing agreements says if within 180 days any party that view the propery while I had it listed and purchases the property I am intitled to a commission,
if it is not listed with another broker. I am in MD.

Glory Bee Costa ABR, CRS, GRI, E-PRO, SRES
410-745-3241-Home Office
410-310-9081-Cell
http://www.Maryland-WaterFront-Homes.com
E-Mail-Glory@GloryBeeCosta.com
Maryland Counties (Eastern Shore)
Talbot, Queen Anne, Caroline & Dorchester
Prudential Premier Properties - Easton, MD - Associate Broker

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Troy Sage Licensed Real Estate Agent, Temecula, CA

Date: September 6, 2007

“As for your problem of "What would you do" concerning the expiration of a listing agreement for your step-moms condo.

Here in California the listing contract is set up the same way. This time period is designed to protect you from the seller entering into a contract with a buyer directly and circumventing any agency relationship (in other words, it keeps the seller from going FSBO on you after you have exposed the property to potential buyers). I suppose it could be useful in the event a buyer and their agent previewed the home before your listing expired, though I feel it will be more difficult to prove.

I feel there is a fine line and a true grey area to the phrase procuring cause. To me it means getting ink on paper and the contract delivered to the seller. If you had a contract written before the listing expired, then I feel you have a case. If not, I think you’re simply out of luck. Remember, this is a sales and marketing job. You must get the property marketed and sold within the contract dates, or you haven’t done your job. I have to agree with Andrew “I wonder why you would ever tell another agent that they need to get you an offer before your listing expires” Unfortunately not every agent is honest, and by telling the other agent the listing was about to expire may have triggered that agent to wait out the contract and write an offer after the expiration. I don’t know that to be fact, but it’s possible. I feel the only way to protect yourself is to keep a list of every agent that came through the property and possibly even a list of their clients names (I know this is not very realistic, but I’ve seen it done). All of this being said I do feel you would still have a hard time proving you were the procuring cause.

Remember that Procure means to obtain or get by care, effort, or the use of special means: In the world of Real Estate procure means to get an agreement in writing.

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Jim@JimSextonRealtor.com

Date: September 6, 2007

Our listing agreement here in AZ has the same wording. If the seller sells the house to someone that saw it or inquired about it during the time I had an active listing then I am due my commission.

Gloria, you need to read the entire paragraph or at least the next sentence in the Commission to the Broker section 6 of the Arizona contract. You are only owed a commission during that period until the seller signs another Exclusive Right To Sell Listing Contract with another Broker. If a buyer that was in the home the day before your listing expired and then purchased it after the new Broker re-listed it the next day, you are not owed a commission! Procuring Cause does not follow to the listing agent only the Buyer’s agent. I have been on both side of this issue more then once.

So if I were you I would be really nice to that new listing Broker because if they wanted to be nice they may throw you a bone but are not obligated too.

Jim Sexton, Associate Broker

ABR, CRS, GRI, CLHMS, CNHS, E-Pro, MRE

Equitable

Scottsdale, AZ

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Rowland Fellows Licensed Real Estate Broker, Folsom, CA

Date: September 6, 2007

I too use this clause and I usually fill it in with 90 or 120 days.
In CA, we have 3 days after expiration to present the seller with the
list of prospective buyers. If the seller plans to relist with
another agent, I caution the seller to present the new agent with
this list as exclusions from the listing agreement. If the seller
does not do so, and he signs a new "exclusive right to sell" listing,
he runs the risk of having to pay double commission.

What would you do?
Carol Harris
Wednesday, September 5th, 2007, 3:49 PM PST
Hey, I am a 6 year realtor but as we all know, there is always
something out there that you don't know how to handle. As for your
problem of "What would you do" concerning the expiration of a listing
agreement for your step-moms condo. If your listing agreement is
like ours it provides a "grace period" or a specific number of days(a
blank you fill in) which after the expiration date you are still due
compensation if you showed or "procurred cause" for the expired
listing. I always put 120 days in the blank. I personally would ask
the executor of the property for an extension of one week, and to
hold off listing the property until that time with the new agent to
allow time to have the contract in hand and accepted/negotiated. If
you have the "120 days" clause in the current listing contract
wouldn't he be responsible to pay your commission as well as the new
listing compensation as well otherwise?(Which could be a determining
factor with the new listing agreement) It is a question only a pro
could answer, so good luck and maybe my comment will give you some
direction for some good questions to your broker. Gook Luck!

Rowland Fellows
Broker Associate, e-Pro, QSC
(916) 792-2368
www.rowlandfellows.com

by the way...I'm never too busy for any of your referrals!

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Paul Silver, Portsmouth, RI

Date: September 6, 2007

You said: Thursday I had a showing and I called the agent to ask for
feedback. ...I told her that we needed to get it done by midnight Saturday
because it is going to expire and the executor has signed a listing
contract with another broker to start listing it Sunday. ... so this other
broker is going to get a sale without doing any of the work to procure the
buyer. I am curious as to what you would do if you were me and what would
you do if you were the agent who took over the listing.

---

Does your listing agreement indicate that if you provided the buyer, that
you would be paid, even if the offer comes in within some predefined period
after the expiration of the listing?

Paul Silver
Focus Professionals, Inc.

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