A client of another agent recently said, “Why do I have to pay you if I brought the buyer?” The seller had an agreement with the agent for an “exclusive right to sell.” Apparently this seller decided to put an ad in the paper to sell her house. She had one person contact her. Before the agent knew anything, the seller went through a process of getting the person who responded to her ad to buy her house. The seller can’t seem to grasp the idea that just because the buyer came to her without the use of an agent that she still owes the commission to the agent.
It seems to me that the public has a skewed idea of what an “exclusive right to sell” listing means. So, I’m going to try to help you understand. In the most basic of terms it means that as a seller, you have given away the right to sell your property. The only person who now has the right to sell your property is the broker or an agent of the broker. So “bringing your own buyer” is not an option. You may advertise the home in a newspaper, you may have an open house, but any buyer who comes into your home and wants to submit an offer must do so through the broker.
Perhaps that doesn’t seem “fair” to some people, especially when the seller is under the mistaken idea that the agent isn’t doing anything for them. There is a lot more to the sale of a property than simply producing a buyer. If the seller could get out of paying a broker’s fee just because they produced the buyer, anyone could walk up to a seller’s home and offer to buy the property. Where would that leave the broker? It would leave them with many hours of work, and a great deal of expense, with nothing to gain.
Another thing I would like to add is that most contracts have a time frame after the contract in which someone who saw the property during the listing period continues to be covered as a part of the contract. Case in point, a buyer held repeated open houses with permission from the broker’s agent. A buyer offered to buy the property. The seller makes up a story to the listing agent to request they cancel their listing. A few days later, the seller sells the house to a person who saw the home during an open house while having an exclusive right to sell listing with a broker. The seller is still obligated to pay the broker because the buyer saw the house while under contract with the broker. Again, the seller argues, “but I brought the buyer.” That doesn’t make any difference under an exclusive right to sell. In addition, the seller attempted to defraud the agent by claiming they were no longer going to sell the house. This is not something you want to do as a seller. This seller will likely end up paying the commission, punitive damages, and attorney’s fees for the listing broker. In addition, the seller could also face criminal charges of fraud. It’s also possible the buyer could be charged with fraud if the two parties agreed to wait until the listing was cancelled. As a seller, you never want to attempt to sell your home when you have an exclusive right to sell contract with a broker. There is nothing wrong with advertising the home yourself if you want to go that route, but you must refer all prospective buyers to your agent.
Terri Camp
terricamp@dfwhomesrealty.com
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