Home Buying in Littleton>Question Details

Edoc79, Home Buyer in Denver, CO

Is the seller's agent resposible for reimbursing us for charges for cleanup he authorized after the sale and without the seller's?

Asked by Edoc79, Denver, CO Fri Nov 18, 2011

permission? My husband and I purchased a home that was represented by the selling agent to be in great shape. When his client moved out, the house was filthy, and lots of personal items was left behind. We were also locked out of the house when we came over at the arranged time to take posession. We called the sellers agent to be let in and he saw some of the mess that was left behind. He authorized us to have the house opened by a locksmith and told us to have it re-keyed. When we got inside and saw the mess, we had our agent contact the seller's agent to let him know how filthy the house was left and that we would be arranging for a cleaning service and a junk haul off service. The seller's agent verbally consented to and asked that we keep the costs within reason. The total bills for lockout, cleaning and junk haul off came in around $775. I provided receipts which the agent forwarded to the seller who refused to pay them. Can I go after the seller's agent to get our money back?

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It seems to me that you should have done a hold-back to cover these costs, especially since you did do a walkthrough & they were not moving out until after the closing. Hopefully you got a good enough deal on the house, that the $775 is really a wash. I know it's not right, but lesson learned, get EVERYTHING agreed to in writing from now on. Personally, I think if the agent did say that it would be taken care of, it should be taken care, even if it means they have to take it out of their commission. Then again, that's us & we mean what we say & actually follow the Realtor Code of Ethics. Have you talked to the Broker of the company?
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1 vote Thank Flag Link Fri Nov 18, 2011
I would say that this might best be handled with a small claims action if you have already had a "discussion" with the Seller's agent and his Employing Broker.
Generally, "broom clean" is the expectation. If it was a short sale or a bank owned property, could be a different set of expectations....
Good luck!
0 votes Thank Flag Link Mon Feb 17, 2014
When we represent buyers, before closing you need to have a walk thru the property to see if it s in an acceptable condition before going to the closing company. You buyer agent had to take you the same day and if the property was not in good condition, you could delay the closing. Now that is closed and paid, since the listing agent doesnt have any fiduciary duties to you is not responsible, but your buyer agent will have to help you with expenses if he is a good an responsible one. Seller's agent is not responsible and he will probably not accept any deal with you.
0 votes Thank Flag Link Sun Feb 19, 2012
How unfortunate you had to go through this experience ... if the seller's agent agreed and is now backing out of his responsibility, I would contact his managing broker. If he's an "independent" agent, contact his local board and file a complaint. Julie Montgomery, RE/MAX Masters, Inc., http://www.jmontgomery.com
0 votes Thank Flag Link Sat Jan 28, 2012
Where is your agent?? Your agent should be negotiating on your behalf with the selling agent! If your agent is not helping, call your agent's broker and ask for advice on your options. Best, Terry Bell, Realtor, Santa Rosa, CA
0 votes Thank Flag Link Fri Nov 18, 2011
I can give legal advice. The statute of frauds requires all interests in real estate to be in writing to be enforced. If the agent put it in writing, you have a contract that can be enforced. Without it, or an admission, you can't win. Nonetheless, you may exert some pressure with a demand letter, and you'd probably get a settlement.
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0 votes Thank Flag Link Fri Nov 18, 2011
As others have said, your contract should explain the sellers responsibilities regarding the condition the home was to be left in. If there was no specification in the "boiler plate" of the agreement as to condition the home was to be left in and no additional agreement by both parties, the seller has no obligations regarding cleanliness of the property. Secondly, The listing agents verbal commitments re having the home cleaned, junk hauled and re keyed although having the possibility of constituting "An Agreement" you may have difficulty getting him to admit his/her remarks. In order to have a chance at recovering your money you would most likely need the agent to provide either a written statement re his/her instructions to you or admit them openly in court. Without either, it's simply a "he said she said". Regarding keys, here in California sellers are obligated to leave any/all keys to the property. If none are left a buyer could sue for the cost of getting keys made, however the inconvenience and cost involved in a suit would most likely be much greater than simply changing the locks themselves. Your best bet maybe to contact your agents broker and discuss the matter with him/her. Sometimes brokers will decide it's well worth the small investment of $775.00 to keep a customer happy and should they conclude that some fault lies on both sides, they could also choose to contact the listing agents broker, discuss the matter with them and possibly agree to reimburse you by splitting the amount? The last comment I'll make is that although I understand your frustration it's important to realize that some of the blame must land at your own feet. As a buyer it's imperative that you be sure these issues are clarified and agreed to in writing within the contract. Another issue in question is your own agents representation of you? Did you tell your agent specifically that you wanted the property to be cleaned, junk hauled away...to be part of your offer? If so and those requests were left from the offer/agreement there may be some liability on their part?
An important lesson to be learned here and I hope your able to resolve it to your satisfaction.
0 votes Thank Flag Link Fri Nov 18, 2011
Also, in response to Ms. Exley's questions - we were given a key to the front door and the seller was to leave the rest of the keys locked in the house. The problem is that he locked the security door so we had no way of getting to the door we had a key to. His agent had to come out to help us try to let ourselves into the house and then told us to get a locksmith out there and have the house re-keyed. At this time, the seller was leaving town and claims he didn't know we were trying to get in touch with him. I believe he knew if he came back to let us in, he would have to acknowledge the mess he left behind. Sorry, just a little rant, there.

The seller's agent has not yet oficially refused to pay, but I am bracing for that. This has been going on since September 3rd, and we finally heard back from the seller on November 1st that he would not be reimbursing any of the money except for the cost of the locksmith to let us into the house. I have not and will not cash his check since I don't agree with anything he claims. The seller wrote a very sarcastic and borderline hostile letter to me and I have notified his agent that I do not wish to have direct communications with him which I don't believe is unreasonable.
0 votes Thank Flag Link Fri Nov 18, 2011
This is especially frustrating because our agents were joking about horror stories after seller's move out and it covered houses left in deplorable condition for buyers to dea with. Apparently the seller was too focused on getting out of there with his check to go buy his new sports car for it to even resonate with him :/ My problem is that the seller has moved to Arizona (his mother passed away a week after we took posession of the house). He may or may not be moving back so I feel like my only option is to go after his agent. I have 74 pictures of the filth and junk he left behind as well as receipts so I would hope it would be easy to take him to small claims court, especially with his previous legal trouble. I really don't want it to come down to court or having to report him to the State Real Estate board, but I feel I have been walked all over. He is also a member of the National Association of Realtors. Would it be best to start my complaint withing his office, or go straight to NAR and the State? I'm sure many of you are members of NAR - do you think there is anything they can do? Does it affect his standing with them at all? Again, thank you all for the very helpful insight :)
0 votes Thank Flag Link Fri Nov 18, 2011
I cannot give you any legal advice, but I can give you my opinion based on 27years experience. The Colorado contract does not make any allowances for condition at the time of possession unless there is something written in the addtional provisions, or an attached addendum. There is an allowance for a walk-through, but if possession is several days after closing, there is always a risk that condition will not be the way it should be. The lesson here is that if there is a possession several days after closing, perhaps something should be in the contract about condition. There is an assumption that the former owner's belongings will be out along with all trash. Some clues might be had at the time of inspection - if there is a lot of junk, deferred maintanence and grime, you might need to ask for something in writing.
In regard to the keys, it is your agent's job to make arrangements for key delivery. Sometimes keys are delivered at closing, sometimes a lok box is left on, keys under a rock, etc. The two agents should have discussed this and conveyed it to both the buyer and seller. Something in writing is best (or al least emails.) If the listing agent made it clear and the seller did not comply, then it is the seller's liability. It all boils down to proof to determine who is liable for that cost.
Your agent, nor the other agent are responsible for the junk left behind (or in that case, stuff removed - I had someone take the kitchen!!). Agents are not there for the move and cleaning. The only time would be if there were clues and no one wrote anything in. Most sellers leave the property in reasonable condition, so it is not an issue that has been incorporated into our contract as it has in some states. But some sellers are just nasty. At this point you need to contact a real estate attorney (not just a family attorney) for a consultation. I would say it is time to sue the little old lady owner and/or her representatve. It will boild down to proof to determine what went on. I hope you have the bills and pictures. It will probably be a small claims issue, since it does not appear to have anything to do with the contract per se.
Why did the seller's agents refuse to pay? They are just pushing you. I would encourage small claims ASAP.Sellers are either pigs or feel entitled to have others clean up behind them. Problem might be if it an estate, then yhou have to file against the estate before probate is finished. Unfortuantely, in that case, collecting might be tough.Good luck.
0 votes Thank Flag Link Fri Nov 18, 2011
Thank you for the feeback so far! We did do a walk through the night before closing. Since the seller's elderly mother (whom the house actually belonged to) was in really bad shape, and as a courtesy, we gave him 5 days from closing to move out. When we did the walk through, it was in the shape we had seen it when we first saw it - with all furnishings and personal effects in place. Instead, he chose to turn the house over after 3 days and left quite the mess. In our contract, we agreed to keep some of the larger items in the basement that the seller could not get out - a piano, some storage closets and I think a few more things, but certainly not all of the other stuff that was left behind. I may try to go after him for that haul off.

I feel like I should point out that the seller's agent had been sued in 1996 by a client for, among other things, making unauthorized decisions on the client's behalf without his/her consent. I feel like that alone would make him hesitant to make such promises ever again as he did with us by authorizing us to arrange the cleanup and lock-out services. He even implied that we would get our money and go after the seller later for the money if he had to. Now he has done neither.
0 votes Thank Flag Link Fri Nov 18, 2011
You can try, but as nothing was put in writing, it may be difficult to prove. This should have been settled and agreed before you closed and the contract would have probably been on your side - read 19.4 of the contract to buy.
As the last answer read, you can try a small claims court, but you have no evidence to show that they agreed to do this.
0 votes Thank Flag Link Fri Nov 18, 2011
Well that stinks, doesn't it? What does your buyer's agent have to say about your options? Once you have closed and taken possession it's yours to deal with. Is it worth the fight? Perhaps. You choose.

For this very reason, I ALWAYS insist that my buyers have a walk through just before the closing, so that these kinds of things can be addressed at the closing table, before signing on the dotted line.
0 votes Thank Flag Link Fri Nov 18, 2011
Edoc,
Step one is read your contract. What condition was the seller supposed to leave the home in? Assuming it was to be left in "good" or "broom clean" condition you may have a better chance of holding the seller responsible. You have a contract and what sounds like a violation of the contract. Going after the selling agent with a verbal approval may be more difficult.
The amount you are seeking should be obtainable in small claims court. It's up to you if the additional time and energy to pursue this is worth it. Sorry you had to do this, I've experienced homes left a mess for my buyers too and it's no fun to clean up someone else's mess.
0 votes Thank Flag Link Fri Nov 18, 2011
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