Your listing is not currently on the mls, in fact it must have come up as expired already so other agents would not contact your old agent, as there is no longer any contact information available.
Also...........no agent would purposely mislead another agent, especially when you're ready to relist - albeit with a flat fee/fsbo set up.
So.......to answer your specific question...........Common ethics and common sense dictate that your old agent not misrepresent his or her current relationship with you.
By the way - not sure if your mls works the same way mine does, but once you relist - your old agent has no claim to any commission if a buyer comes along who already saw the home when it was originally listed. The protection is only if the home is not relisted.......and, in my area, the buyers would have had to be registered in order for the protection to be in effect..
Check out how it works in your area.
Best of luck with your sale.
Assuming one of the standard Exclusive Listing Agreements (CAR or PRDS) was used with your former agent and the agreement expired, the agreement most likely had what is called a savings clause, which is what Allyson was alluding to below. The point of the savings clause is to protect an agent's commission after the agreement expires in the event a potential buyer that was found by the listing agent now decides to buy the property after expiration. You should read the agreement to see what it says because, with regard to commissions, it will spell out the length of time the savings clause will be in effect and whether the agent is required to present you with a list of buyers that had been showed your listing. Generally, the savings clause is voided upon entering into another Exclusive Listing Agreement with another agent.
If your listing agreement, assuming it was an exclusive agreement, was canceled or you just instructed your agent to withdraw your home from the MLS, then you are technically still in contract with your former agent and may have to pay him/her a commission even if you found the buyer and your former agent did little or nothing.
As for what your former agent should tell anyone who calls, Mr. Tepper's answer below is the best. However, and sadly, what an agent should say and will say are two different things and depend on the agent's ethics.
I am always available for a frank discussion about your options should you want further advice. Note that I am a licensed attorney as well as a Realtor.
Cappy D. Myers, DRE 01767062
TIMELINE Real Estate Services, Inc.
Standard of Practice 1-9
The obligation of REALTORSÂ® to preserve confidential information (as defined by state law) provided by their clients in the course of any agency relationship or non-agency relationship recognized by law continues after termination of agency relationships or any non-agency relationships recognized by law. REALTORSÂ® shall not knowingly, during or following the termination of professional relationships with their clients:
reveal confidential information of clients; or
use confidential information of clients to the disadvantage of clients; or
use confidential information of clients for the REALTORÂ®â€™s advantage or the advantage of third parties unless:
clients consent after full disclosure; or
REALTORSÂ® are required by court order; or
it is the intention of a client to commit a crime and the information is necessary to prevent the crime; or
it is necessary to defend a REALTORÂ® or the REALTORÂ®â€™s employees or associates against an accusation of wrongful conduct.
So, anything that is considered confidential information that the agent found out while representing you should not be shared with others even after you are no longer a client. So your former agent can't say something like: "He'd listed his house for $400,000, but he told me he'd take anything above $350,000."
REALTORSÂ® shall be honest and truthful in their real estate communications and shall present a true picture in their advertising, marketing, and other representations. REALTORSÂ® shall ensure that their status as real estate professionals is readily apparent in their advertising, marketing, and other representations, and that the recipients of all real estate communications are, or have been, notified that those communications are from a real estate professional. (Amended 1/08)
So, Realtors must be "honest and truthful" in their real estate communications.
With all that as background, there's still some lattitude for the agent. He might simply say: "I am sorry. Newseller1 is no longer my client."
"I am sorry. Newseller1 is no longer my client. The property is not listed on the MLS."
"I am sorry. Newseller1 is no longer my client. It is my understanding that Newseller1 is offering the property for sale by owner."
--or [if you authorize the release of your phone number, which may be considered confidential information]--
"I am sorry. Newseller1 is no longer my client. It is my understanding that Newseller1 is offering the property for sale by owner. If you wish to speak to him directly, you can reach him at 650-555-1212."
I'd suggest you discuss these possibilities with your former agent.
I'd also suggest you discuss whether you'd be willing to pay him a commission if he brings you a buyer, if he's acting as the buyer's agent. That's totally up to you, but will increase your odds a bit and may give him some additional incentive to follow up on any calls of interest he receives. ["I am sorry. Newseller1 is no longer my client. It is my understanding that Newseller1 is offering the property for sale by owner. If you wish to speak to him directly, you can reach him at 650-555-1212. However, I would be glad to represent you as a buyer's agent in this transaction and it won't cost you anything because Newseller1 is willing to pay the commission."]
Hope that helps.
My concern is that my former agent might be contacted by a new buyer's AGENT, and instead of informing the buyer's agent that he no longer represents the seller, he puts the buyer's agent on hold while he attempts to lure me into entering another contract with him in order to gain access to the buyer.
I do not see this as a long term issue as my new MLS listing will be posted before the close of this week. But in the interim, I am worried that my former agent might not be clearly stating that he no longer represents the seller.
I would also like to clarify that I understand that buyers that have already established contact during my contract period with the former agent are protected, and that commission would be do to my former agent. My concern is with new buyers that are already represented by an agent.
Would common ethics suggest that my former agent clearly indicate that he no longer represents the seller?
Has your agent provided you with a list of existing buyers who have shown interest in your home?
Is the sign still out front?
Does the expired listing on the MLS say please contact the listing agent if interested?
Do you intend to use your old agent in some kind of consultative capacity to help sell the home?
Why did you not re-list or extend your listing?
The way I read the question, it sounds like the agent may still be getting inquiries about your house.
Do you want to get your home sold? Sounds like a dumb question but if your 'former' agent finds a buyer, would you not want to sell through him/her? Getting your home sold ought to be your top priority.
Mark Burns, Realtor
DRE #00896552 licensed since 1985
Keep in mind with any For Sale By Owner you MUST follow statues of the state in order sale any property or you can be sued.
If in fact you are a seller and have terminated your agent's employment then any agency duties this agent would have had towards you have ended. So your ex-agent owes you nothing moving forward.
If you do offer to pay a buyer agent commissin then if I was your ex-agent, I would tell people about your house and move forward. If you do not offer to pay a buyer agent commission then if I was your ex-agent, I would not feel any obligation to tell a prosective buyer about your house. You can't it both ways - expect the ex-agent to promote your property while offering no compensation in return.
Alain Pinel Realtors
So, a lot of "for sale by owner" sellers agree to pay a commission for a buyer's agent (who will represent just the buyer, not the seller.) If that is your plan, your previous agent could agree to work with potential buyers who come to him or her after your listing expires (after you sign a compensation agreement with the agent). If that is not your plan, your former agent should just say some thing like "I am sorry, I cannot represent you. You will have to contact the seller directly." But I do wish you luck You might get lucky, but many buyers will walk away once they hear that.
I am not clear on your question.
Are you a seller that had his house listed with an agent and now the listing has expired, and you are trying to sell your house by yourself?
Or are you a buyer looking to buy a for sale by owner?