Home Buying in Fitchburg>Question Details

Rrats0966, Home Buyer in Boston, MA

Question about using using a buyers agent when a sellets agent has shown us a house

Asked by Rrats0966, Boston, MA Sat Mar 6, 2010

We went to the open house in Fitchburg and liked the house and a week later
we called and asked to see it again. I have never signed any agreements
with any agents other than the form that states who they represent. The
seller's agent for the Fitchburg house gave me some paperwork, but I never
signed it nor does she have a copy. Today we were out with an Agent that I
like and we told her about this house. She told me that she couldn't
represent us for this house. I need to understand why. My wife and I have
done the leg work on this. We have signed no documentation

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Answers

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BEST ANSWER
It is a matter of procuring cause - which agent showed you the home. If you'd like to work with this new agent as your buyer's agent no matter what property you buy, then I would suggest you ask her if some sort of referral could satisfy the listing agent and allow her to assist you.

This is not an uncommon situation . Buyers attend Open Houses hosted by the listing agent, or perhaps another agent, just want to see the property, not looking to hire the agent. But by contacting the agent that second time, you moved from visitor to client. The agent could - and likely would argue - that she was the procuring cause of the contract if you decide to make the offer and thereby is due the commission.

In the future, let Open House agents know that you are already working with an agent. I suggest to my buyers that they carry a supply of my cards. Open Houses are public events and you should be welcomed. Then follow up with your agent - do not call an agent unless you want to work with them, this will avoid future confusion.

But try that referral idea, it may give your agent what she needs to assist you with this home.

Another tidbit, the rules are quite strict around new construction -if you happen to consider new construction, be sure to have your agent with you when you register at the site, otherwise she will likely be cut out.

Good luck,
Jeanne Feenick
Unwavering Commitment to Service
Find success at http://www.feenick.com
Web Reference: http://www.feenick.com
0 votes Thank Flag Link Sat Mar 6, 2010
You as a buyer can make on offer on a property thru any agent you choose. If you did not sign an Exclusive Buyers Agent Agreement then you are free and under NO contractual agreement to make an offer with anyone. The Listing agent that was doing the open house, showed you the property and may fee she/he is entitlted to ALL of the commission. The listing agent represnets the seller and you have the right in MA to have representation from an agent that is protecting your interest.

If the agent doesnot want to represnt you, give me a call. I would be happy to present your offer to the selling agent.

Don't walk away from something you like because the agent wont submit an offer.
1 vote Thank Flag Link Sun Mar 7, 2010
Good morning Rats0966:

This was an issue a few years back before the new agency laws in Massachusetts. If you decide that you need to be represented by a buyers agent then you certainly can proceed with one . The listing agent would have very little leverage in questioning the procuring cause on the transaction under the new guidelines for determining procuring cause.

In my mind here, there is a bigger issue here called customer service. Your buyer agent should show you the home under any circumstances and work out any issues between her and the listing agent privately.

Best regards,


Rob

http://www.GoodwinRealtyGroup.com
1 vote Thank Flag Link Sun Mar 7, 2010
@ Audrey... I think you missed the line where Rrats said: "a week later we called and asked to see it again." So besides seeing it at the open house, they then called the listing agent and saw it with her by appointment. That's where the complication sets in.

Laurie, I didn't think you did... you and I have had enough of these procuring cause conversations online, so I know that you're all over it... my comment wasn't so much directed AT you, as to clarify... (even though I did address it to you... mea culpa).
0 votes Thank Flag Link Thu Mar 11, 2010
Alan May, Real Estate Pro in Evanston, IL
MVP'08
Contact
Alan, as you've articulated, contacting another agent isn't a "break"- didn't mean to suggest that that's all it took. Engaging an agent of choice, however, and letting the open house agent know that there is no relationship and that as a buyer, representation is sought, would seem to be a fair direction to take.
As many have responded, providing an open house does not procuring cause make, in the presence of buyers seeking their own representation.
Web Reference: http://optionsrealty.com
0 votes Thank Flag Link Thu Mar 11, 2010
How is going to a Realtor's open house considered procurring cause? I've had open houses in Atlanta and Los Angeles, never heard of such a thing, that I am procurring cause because someone came to an open house. I think you guys need to rethink "procurring cause".
0 votes Thank Flag Link Thu Mar 11, 2010
Laurie - a buyer contacting another agent doesn't constitute a "break in the chain"... if it did, they could see a property with Me on Monday morning showing, call you Monday evening, and buy with you on Tuesday, and consider my Monday showing was not procuring cause.

The break, generally has to be from the Realtor's side. A lack of attention... no calls, no follow-up, no additional showings... something like that.

If a fair amount of time has passed, and there's been no contact (automated MLS e-mails don't really count), then a mediation board would most likely conclude the chain has been broken.

In general, clients get to work with, whomever they please. It's "who gets the commission, or what portion thereof" that's resolved behind the scenes based on procuring cause. Chopping at the chain in writing, by sending a letter to the Realtor stating that their services are no longer required, and that you've found another agent to represent you is a good step. But doesn't totally break the chain, in and of itself.

"Procuring Cause" is a complicated beast, that very few of us understand completely... myself included.
0 votes Thank Flag Link Thu Mar 11, 2010
Alan May, Real Estate Pro in Evanston, IL
MVP'08
Contact
"Procuring Cause" requires an unbroken chain of events, from the time you viewed the property with the listing agent, until the time you actually made an offer.
If the chain of events has been broken, via your own contact with another agent, and request to revisit the property, you should be able to use whomever you want.
Break the chain by putting in writing to the listing company that you have an interest in viewing the property, wish to use an agent representing YOU, not the agent representing the seller, and alert the agent that you use that this is occurring, so that they are prepared to move forward on your behalf after you have made clear to the listing company that the chain is broken.
Not legal advice- but assuming that procuring cause involves opening a door is incorrect.
Web Reference: http://optionsrealty.com
0 votes Thank Flag Link Thu Mar 11, 2010
You have absolutely no obligation to utilize the services of the seller's agent provided you signed no representation agreement. The Massachusettts Mandatory Agency Disclosure states clearly IT IS NOT A CONTRACT.
0 votes Thank Flag Link Thu Mar 11, 2010
The Seller's agent was doing an open house, which she contracted to do in her listing agreement. Many times buyers come to an open house without their agent, there is no reason, nor do you owe anything to the listing agent who was doing her job for his or her seller. It is not like you called this agent and made an appointment and went to see the house. I'm not understanding why your agent does not want to write the Purchase agreement. Perhaps there is some information missing here. I am licensed in 2 states and this just sounds a bit bizarre.
0 votes Thank Flag Link Thu Mar 11, 2010
Home Buyer:

Your agent can absolutely show you and sell this house to you, but what she meant is that she may not get paid for her efforts. Now, I sell about 30 homes a year and I understand that when a seller hires me my job is to sell the house. Now, it is awesome when I sell it myself because I make more money, but ultimately I want both parties to be comfortable so if the buyer comes back with a broker then I personally will pay that broker.

I will be upfront with you that part of the problem is that you saw the property on your own with the sellers agent so you have created a procurring cause situation, but there are solutions. I recommend the following:

1. Call the sellers agent and tell them that you really appreciate them taking you through the home, but as first time buyers your parents, friends, and/or lawyer said that you need a buyers broker.

2. Ask them if they will pay your buyer's broker and/or if they will not then that will be reflected in the way you can make your offer because you will need monies to pay your agent.

You must understand this agent has a fiduciary responsibility to get the seller the highest amount of money and if you have to make an offer for less to pay their full fee and a buyer broker fee then they are violating the contract with the seller.

Best
0 votes Thank Flag Link Thu Mar 11, 2010
Great Question - This happens alot more than you would think. You have every right to be represented or not represented by any licensee or no licensee of your choice. There is the question of how your buyer agent is getting paid, because the listing agent was the procuring cause of your introduction to the property. This is through her efforts ( advertising, the open house etc..) you were aware of the property she is due a commission. However your buyer agent should be able to submit a Contract to Purchase form on your behalf with no problem.

Possibly your agent feels it is in your best interest is to work with the listing agent - as this may get you the best deal on this property.

I would suggest having another conversation with your agent.

Would you mind if I used your question and situation in my weekly Real Estate Column?
0 votes Thank Flag Link Mon Mar 8, 2010
The agent you went out with today is respecting something called "procuring cause" which is less about signed paperwork and more about who actually caused you to purchase the house. In this situation the first agent, by holding the open house and then showing it to you later, probably has an argument that they were the procuring cause agent.

I've been in situations on both sides of the procuring cause issue and would encourage you that the agents might be able to work out some sort of referral arrangement so that you are able to be represented by the agent you liked (while avoiding a dual agency situation) still allow the listing agent to be compensated for their time and effort thus far.

Best of luck with it! If there is anything else I can do for you, please don't hesitate to call/email.

With Your Success in Mind,

Shar Rundio
Thompson's Realty
480.560.7255
shar@speakingofphoenixrealestate.com
@sharrundio (twitter)
0 votes Thank Flag Link Sat Mar 6, 2010
This is an ethical issue for a Realtor. We agree not to intrude on another agent's territory and even though you did not sign an Exclusive Agreement with the listing agent, that agent presented the home to you. We agents have to work together and respect each other's business. I would have to agree with the agent you are working with. Had you gone to the open house while working with your current agent and disclosed this to the listing agent, you wouldn't have an issue.
Best of luck to you with your purchase.
Regards,
Lisa Jones
ERA Tom Grizzard
ljones@tomgrizzard.com
0 votes Thank Flag Link Sat Mar 6, 2010
She can represent you so just move forward with the agent you are comfortable with. Showing you a property does not mean that agent was procuring cause in the sale.
Web Reference: http://www.territoryre.com
0 votes Thank Flag Link Sat Mar 6, 2010
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