Home Selling in 79925>Question Details

Pat, Home Seller in El Paso, TX

Can I break a contract of sale,if the earnest money have not been deposited,? Ep TX

Asked by Pat, El Paso, TX Sun Aug 24, 2008

Also the agent refuse to give me copies of the all documents that I signed, we have 3 months of 6 months contract, I asked to my agent to break the contract because a family trouble I live on the home but the owner is my brother in law he received help from the bank so he don't want to sell the house anymore , when I asked for help to my agent she get angry with me telling me that she was loosing her time, but in all that time I show the house by my own to 30 different people and she only show the house 3 times and make and open house also , she threaten me telling me that she will do every effort to taking away my house, it supose to be serious the offer to sale that she presented to us , but because I don't have any copies of the contracts I am in doubt , if the ernest money have not been deposited it is a reason to break the contract' sale.? I'm planning to go tomorrow to speak to her broker for help but I'm afraid that she can demand or ask her broker tell I paythe commisio

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You say that the owner of the home is your brother in law even though you live there. If that is the case then the signatures required to list the home or accept an offer would have to be his not yours. if your brother in law entered into the agreement to list the home then the listing agent is under no obligation to provide you with any documentation and would be violating her duty to him if she shared those documents with you. Agents must provide copies of all documents that you sign, if you ask for them, or they are in violation of the code of ethics.
If the owner of the home asks to cancel the listing agreement the listing agent MUST cancel the listing, however the owner could be liable to pay the commission if they relist with someone else or otherwise default on the listing agreement. For specific questions related to your contract you should contact a real estate attorney.
0 votes Thank Flag Link Tue Aug 26, 2008
How do you know the earnest money was not deposited with the escrow agent?
The law requires the money to be deposited by close of the second business day after execution by the seller and the buyer. A breach may have occurred if the money was not deposited in a timely fashion.
The seller should discuss the matter first with the listing Realtor, then with the broker of the listing Realtor. If this fails, then the seller should discuss the matter with an attorney.
As Kathy mentioned, if the buyer signed but the seller has not signed, then no contract exists. Or if seller makes changes that buyer has not signed off on, then the seller may withdraw his counter-offer up until the time the seller is notified of acceptance of the seller's terms.
A commission is due according to the listing agreement when a qualified buyer is brought under contract. No commission is generally due if no contract exists or the offer or counter-offer was withdrawn before acceptance by both parties, but since we don't know the details of what happened, it is not clear whether you even have a contract or not.
Generally, an attorney can clarify the rights of the parties and give the seller advice, and this is the recommended course of action if the broker cannot straighten it out to the seller's satisfaction.
2 votes Thank Flag Link Sun Aug 24, 2008
Hi Pat,
I am very sorry to hear about the issues you are having. Perhaps there is a breakdown in the communication somewhere. I applaud your attempt to resolve this conflict by speaking with the broker first. The following info may help...

You are entitled any information that your listing agent and broker collects from you or other potential buyers. In fact, it is a requirement that the agent fully disclose all pertinent information to you.

As far as the listing agreement goes, you have little recourse unless you can prove that the contract was breached. Most good natured agents would sympathize and let you out of your contract with no fault, but that is a courtesy, not a requirement. After all you did sign a contract. Consider your position if the roles were reversed.

To clarify, an exclusive right to sell agreement (likely what you signed) states that the listing broker and the agent will receive a commission no matter who brings the buyer. There are also other efforts involved in promoting your home such as listing on the MLS, advertising fees, office expenses and so on.

Earnest money is something provided by a homebuyer to secure the contract of sale. The contract is only secure if YOU accept the contract. In most cases, unless it is a FULL PRICE offer, you can reject the offer and not be responsible for the commission. Most listing agreements stipulate that an agent's commission is earned when they produce a buyer who makes a full price offer whether or not you accept, or any other offer that you do accept. If it is not full asking price, you can likely reject it and be safe.

Here is your best course of action....
1. Speak with the listing broker as you mentioned (this may solve the problem).
2. If not, contact the Texas Real Estate Commission with your concern.

You are entitled to file a complaint with TREC, but make sure and carefully read the contract before doing so. If you are the one in breach, then you will be responsible for performance of the contract.

You could also just wait until the listing expires, then fire your agent. I am not a legal expert and this is not legal advice. It is merely an opinion based on my knowledge and observations. Good luck.
2 votes Thank Flag Link Sun Aug 24, 2008
I don't entirely follow you, but my advice is go speak with the broker. It's the broker's listing not the agent. Speak with them kindly and tell them your circumstances. They don't always have to let you out of the contract, but hopefully they can help end things with you on good terms.
Web Reference: http://www.teamlynn.com
1 vote Thank Flag Link Wed Aug 27, 2008
Bruce Lynn, Real Estate Pro in Coppell, TX
MVP'08
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If you have not signed the offer (accepting the offer the seller has made) then you do NOT have a contract. You do NOT have to accept any offer and AS LONG AS YOU HAVE NOT SIGNED THE OFFER ACCEPTING IT, then you can back out at any time.YOU are the seller, not your agent. She is suppose to be working FOR YOU not for herself.
If you are having problems communicating with your agent CALL THE BROKER.
Good Luck.
1 vote Thank Flag Link Sun Aug 24, 2008
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