Home Buying in 85614>Question Details

Morgan, Home Buyer in 85614

Broker insisting on getting his 3% even when she, in my opinion, breached our buyer broker contract.

Asked by Morgan, 85614 Fri May 8, 2009

My husband and I started the process of buying a house with a buyer broker. After the first round of contracts were signed we realized she missed that this was a short sale transaction. She lied about typing out the contract....she was handwriting it on her steering wheel when we arrived to sign the papers. It took her over 1 week to pick up a signed counter offer. Asked us to talk with the listing agent to find out what was taking so long. Doesnt call me back when promised and when we wanted to back out of the deal she told us she would sue us for the 3% if we ever bought the house with another agent. She let us out of the buyer broker contract but is still insisting we cant buy the house thru anyone but her......else she is owed 3%. Is there any way I can buy this house without paying her?

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11
I'm not sure what the legalities are in Arizona... it'd be wise to check with a real estate attorney who works in your areas.

What you're bumping up against is something called 'procuring cause', which in laymans terms kinda translates into "he who first showed you the house, gets the commission"... but procuring cause is more than just who showed it first...

it's an unbroken chain of events that eventually leads to the sale of the property. it appears that your "chain" (firing this realtor) is now broken. And while they may be due some portion of the commission... they may not be due all of it, as they will not have:
* written the contract
* negotiated the contract
* accompanied the inspection
* helped negotiate the inspection issues
* followed through 'till closing...

and plenty more... you get the idea. Contact a real estate attorney, and find out exactly what your local rights are. Don't let this agent/agency bully you into paying them 3%, or into skipping on purchasing a home that you like.
1 vote Thank Flag Link Fri May 8, 2009
Alan May, Real Estate Pro in Evanston, IL
MVP'08
Contact
Sorry you had a bad transaction. AS a REALTOR, I, along with many others, do not like this to tarnsih our profession.

Contact her broker in writing and tell the broker what happened and that she is not to represent you.

If she does sue you, have all your facts to present to a judge and I am sure the judge will rule in your favor.

Also, you can put a complaint in with the local Board of REALTORS.

If you are not comfortable, then contact a real estate attorney that understands buyer-broker contracts.

Good luck!
Web Reference: http://fredglick.com
1 vote Thank Flag Link Fri May 8, 2009
In this instance where the agent out and out lied to you I would be of the opinion you have every right to fire her. In the case of procurring cause for the most part she is the first to take you across the threshold, and in fact did create the contractual documents on you behalf.

Now did she take reasonable care of the transaction. It doesn't sound as though that was the case when you had to follow up on your own with the listing agent. It also does not sound as though she acted in a timely fashion, nor abide by all the procurring cause standards as ambiguos as they may be sometimes.

It amazes me when agents take a hard stance as this one did, also the broker. I believe she and her broker would have been much better off trying to overcome this obstacle by searching out a better customer service solution i.e. asking if another agent within the brokers group would be acceptable, at least there could be some commssion sharing and the procurring cause issue would have gone away, or some other solution where both parties in the end could feel not so slammed by one another.

I hope you get the home of your choice and am sorry you have been treated so poorly. Not all real estate professionals are like this one. It sounds as though you are putting alot of right efforts into this. It has been my observation most generally in situations of this nature the buyer agent and broker do not take it to a law suit. Too much time and money.

Good Luck with your new home !
Web Reference: http://jerryclifford.com
0 votes Thank Flag Link Fri May 15, 2009
(Really hoping it wasn't my brokerage!!!) You're right, no need to name names.
0 votes Thank Flag Link Fri May 8, 2009
I wanted to find a way to buy the house because the home builder decided to pull out of the community and the house has never been lived in. Its brand new with more upgrades than I could ever want. I am going to look at more houses, but I have already looked at a billion and this is the one I wanted. Oh well.

Mary,
I have never been treated so rudely and I would plaster her name all over this website if I didnt think I would be slapped with a law suit for slander. Im sure you are very familiar with her name if you live and work in Tucson. I have already started the process of making complaints and will make it my mission to follow up.
0 votes Thank Flag Link Fri May 8, 2009
Bravo, Morgan! I am really glad you were able to speak to a competent attorney and new agent and work this situation out to your advantage with minimal headaches. Please, for the sake of other buyers like you and the real estate community as a whole, report this agent and her broker to ADRE here: http://www.re.state.az.us/INV/INV.html
0 votes Thank Flag Link Fri May 8, 2009
She did not go over the buyer broker contract with us, it was tucked into the original contract we signed to buy the house. I asked her to type the contract instead of handwriting it in her car, so it came to me thru email. I printed and signed it.

I did not give her an LSR for the original contract, but with the counter offer we had an LSR for the amount we agreed upon with the seller.

I talked with an attorney and I think I have a plan of action:
1. I found another agent who does not require I sign a buyer broker, he said if we are unhappy he will never hold us to a contract and create a bad situation.
2. Go look at more houses
3. If I dont find another house I like as much I will purchase the original house. When I spoke to an attorney he said Arizona courts have upheld the decision that once another agent comes into the picture, tries to show us other houses, and we end up back at the original one......our new agent gets the 3%, not the incompetent one we had in the beginning.
0 votes Thank Flag Link Fri May 8, 2009
Sorry you are going through this , Morgan.

Here is some other ammunition:

1. Did she require you to get a mortgage pre-approval before submitting the offer?
2. Did she properly disclose to you her relationship with you in the transaction?

If she is going to be a stickler, then you can go by the book with her.

A good attorney will probably be able to make them go away very quickly.

Also, in addition to the Board of REALTORS, you can contact (after you talk with the attorney) the state licensing board.

Best of luck and contact me (fred@fredglick.com) if I can help you with anything else.

Fred
Web Reference: http://fredglick.com
0 votes Thank Flag Link Fri May 8, 2009
Thanks to all for your advice. I have called the Arizona Association of Realtors to make a complaint and also called a real estate lawyer. I appreciate your responses.
0 votes Thank Flag Link Fri May 8, 2009
I'm so sorry that you are having such a bad experience with your agent. I agree with the posts below, but since you have already contacted the broker with no success, here is an alternative: if you still want the house, hire a real estate attorney to represent you for the remainder of the purchase and tell the seller/listing agent to direct all communications to your attorney. It will probably be cheaper than getting into a messy lawsuit over a commission, as the agent will still be entitled to keep the 3% offered by the seller. It will cost you a little more than it should have, but you will be able to get the house and not get tangled up in a lawsuit. Also, you should ABSOLUTELY report the agent and the broker to the Department of Real Estate for breach of fiduciary duties (reasonable skill and care is the first thing that comes to mind, plus a whole lot more) AND the local Association of Realtors for breaching the Code of Ethics. By reporting, they will launch investigations without it costing you any more money.

I truly wish you the best of luck, and hope it works out for you in the end!
0 votes Thank Flag Link Fri May 8, 2009
I talked to her broker and I have never been so angry after a phone conversation in my life. He said he would never let me buy the house without paying his agency and he would sue me for the 3% if I did. I feel like I have no recourse other than legal action, which is probably going to cost me as much as paying the broker the 3%. I am so frustrated. I will probably walk away from this house if it turns out I have to pay him.
0 votes Thank Flag Link Fri May 8, 2009
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