Given the extent of your proposed changes, I would recommend that you talk with the agents you have identified on your short list and get a sense of their receptiveness. I like the idea of having measureables and an out if the agent doesn't perform but the agent does need time to do her job. Likely part of what you have been presented is the market absorption rate for your area - ie, time to sell expressed in months on average. If that number is under 3 months, then that may be enough time, but otherwiise it may not align with the market reality.
What is terrible is being locked into an agreement with an agent that is not performing - the old "list and disappear" nightmare. My recommendation is to pick the very best agent, agree on deliverables and then measure success in delivering on those promises, and then listen to your very good agent and let her do her job.
And as to Dual Agency, this is at the broker level, so if you go with a large firm especially, this could limit your exposure. Whether it is your agent that brings the buyer, or another in her office or any office under the same broker, Dual Agency applies. So if it is a concern about representation, then I'd suggest insisiting on another agent being brought in if it is your agent that brings the buyer. But do consider the downside of excluding Dual Agency.
On this point and all others, review them one by one with your agent and go from there.
Good luck to you!
Unwavering Commitment to Service
You make some very good points about your revision requests to a listing contract. I can understand why you want to have some of the language altered, but keep in mind that selecting and working with an agent to sell your home is going to require a team effort. If the contract that you want with a listing agent is geared to be mostly one sided in your favor and you decide that you want to call all of the shots, then why not just go at it yourself. It appears that you already have a real estate attorney on your side to advise you with the entire process, so why do you need a real estate agent?
I would recommend that you take more time in selecting the right agent, listen to what they advise, check references on their past performance and leave all of the other changes and revisions on the sidelines. Please keep in mind that most listing agents do a great deal of work upfront before ever seeing a dime. There are not many professions out there that you don't get paid up front before the job is started or at least some reimbursement part way through. We as agents not only spend a great deal of time marketing your home, but to then to have a seller pull the rug out from underneath our feet. It's just not right.
Find a good agent, be respectful of them and their requests and you shouldn't have any problems. Remember it's a team effort!
Best of luck!
The language your lawyer has written is fair. The one caveat would be advertising. Should you have a high end home that may be advertised in the Robb Report on real estate or some other national magazine the lead time for such an ad can be quite a while. It wouldn't be fair to the agent if they spent their own money to promote your home in such a way only to have you cancel the listing. In some instances print advertising is still valid. You may want to add additional terminology to deal with such a case. Then again, if your agent is doing this much for you, odds are you won't want to cancel your agreement.
As far as an agent's performance, you could spell out clearly in writing exactly what you expect and when. This could include advertising, open houses, photography and even how often you want to be contacted and your preferred method of contact such as phone or email. This shouldn't be a burden on an agent and should actually be helpful. If the agent thinks it's too much then you both know right up front and you can move on to another agent.
I would have no problem with the specific changes you would want to make in the listing contract. Some of them I cross right out in the contract as a general course of business ie the rental paragraph. I've done all of them at one time or the other with one exception, dual agency.
If you agree to dual agency in effect the company that lists your home becomes a dual agent representing both the buyer and seller. Your agent should always remain your agent representing you and therefore is your designated agent in a dual agency situation. This way they have a fiduciary responsibility to represent you at all times. Nothing you tell that agent regarding your personal situation or anything to do with the sale of your home may be disclosed without your authorization in advance. To forbid a dual agency situation basically tells anyone in your Realtor's firm that they can't ever represent a buyer when it comes to your house. As most agents are representing buyers you are kind of shooting yourself in the foot and removing the motivation for agents within your listing agents firm from showing you home. Perhaps this wasn't clearly explained to you.
I wanted to say I like your idea of providing a list of services provided and when they will be performed. It's amazing how many agents list your home in the MLS and forget about it figuring someone else will just sell it.
If you haven't decided on an agent at this time or would like to speak to another agent, please don't hesitate to get in touch.
Donald A Mituzas 845-222-0114
Licensed Associate Broker
Certified International Property Specialist
2008 Realtor of the Year
Director - Westchester Putnam Association of Realtors
Director- New York State Association of Realtors
Iâ€™m not sure what part of Trulia you entered this question that you are getting all this answers from California but rest assured that I have a team of lenders and attorneys that work with me and my clients to make the process as smooth as possible.
The listing agreement, or the â€œExclusive right to sellâ€ agreement, is a state form so it is similar in all New York counties. There is a section that allows for changes. In most itâ€™s paragraph 14 called â€œadditional pointsâ€. This paragraph allows the seller and agent/broker to make concessions.
Again, call or e-mail me if you would like to talk about these issues.
Keller Williams Realty Group Scarsdale
I won't practice law, if your lawyer doesn't practice real estate.
No really, in real estate everything is negotiable, however it is more about supply and demand.
What specific changes are you looking for in a listing agreement?
Of course there is some flexibilty in accomodating changes and adding an addendum to a listing agreement contract depending if two of the parties agree.
Please feel free to contact me with any further questions you may have on this topic at 914-582-2904.
Note that all states have their own Realtor Association that have teams of lawyers who have put together the agreements and other real estate documents that are used by realtors in their state. These lawyers make sure these agreements adhere to or conform with the laws of their state.
Depending on what kinds of changes your lawyer recommends, and how they are presented in and addendum, be prepared for a delay in response while the brokerage discusses such changes with their own lawyer.
You nerver know till you try.Everything in Real Estate is negotiable. Sit down with an agent and go through it point by point. I dont see any deal killers it is pretty straight forward stuff, a listing agreement. Throwing out a laundry list of questions in this forum is bound to bring out a lot of conflicting opinions. Personally this could be fodder for your agent interviews...
Best wishes for the new year!
Any contract with the listing agency can have an addendum attached to it that makes changes to the agreement as long as both sides (seller and listing agency) agree on the terms.
All the best,
Are you a seller HOWEVER marked your ID as a home buyer? If yes then forms are state regulated can not change the wording UNLESS there is an addendum attached. for those changes only
Are you a home buyer asking a question about sales offer agreement? If yes then forms are state regulated can not change the wording UNLESS there is an addendum attached for those changes only
Lynn911 Dallas Realtor & Consultant, Loan Officer, Credit Repair Advisor
The Michael Group - Dallas Business Journal Top Ranked Realtors
Licensed Associate Broker
Accredited Buyer Representative
GREEN Designated Agent
William Raveis Legends Realty Group
I have read the posts on this question and your other one and the answers seem to be spilling over into both forums. As someone mentioned, this can be a daunting process if you are not immersed in it every day! For us full time, hardworking and ethical agents, itâ€™s quite simple. As I mentioned in an earlier post; if your home is on MLS, any serious buyer will see it.
The large companies that you asked about and their related advertizing dollars, is SOMEWHAT of an â€œold schoolâ€ argument. With very few exceptions, any brokerage listings will end up on Trulia and Realtor.com. If a buyer is working with a buyer agent, they will see the listing on MLS while searching within their clientâ€™s price range and other specifications. (This is why a hard working, knowledgeable agent who knows the market and area and advises you on a proper price, is the most import thing these days!)
Itâ€™s not rocket science but it IS science! ïŠ
OK all, this is one of the very few days that I reserve to spend entirely with my family and I am going to do that now. Susie, please feel free to e-mail me directly if you would like to discuss this in person at your convenience. I will explain EVERYTHING and answer all your questions with no pressure or obligation. Take care everyone!
Keller Williams Realty Group Scarsdale
Every contract represents an agreement, and to my mind, editing the listing contract is just a negotiation - you (through your attorney) want concessions, your listing broker might want some of their own.
The way I read it, your attorney wants you to be able to back out of a sale and not be liable for a commission, for you to be able to use your broker's marketing to attract a buyer and pay half of the commission, wants you to be able to walk at will from the listing agreement without recourse, and then there's the services bit which is somewhat ambiguous. And in return, you're offering . . . the opportunity to market your property through the listing term without compensation, which is what we normally do.
Anyway. Since I'm not really familiar with the listing contract used in your parts, there are a couple of generalities that I would object to, even if I really wanted to take on the task of marketing your home.
#1. We brokers expect to get paid - at least here in Seattle - for delivering a full price and terms offer to you. Should you reject that offer, we expect to get paid. If you agree on an other than full price and terms offer, and you default on the contract, we expect to get paid.
#3, we don't have a clause like that in our listing agreement, but I'm not sure why I'd want to limit my avenue of recourse necessarily. #4 is funny; some companies will let you walk at will, others won't. I still may insist on having my expenses comped, however.
#5 is interesting, what constitutes a "service?"
#6 is outrageous, and I wouldn't agree to it. Big surprise, a buyer drives by the property and a seller comes out and says, I can save you half the commission! There is a type of listing for that, it is called the "open" listing. Not only that, but our MLS would not accept that clause - cooperating brokers do not want to show properties where the seller may have a buyer in their back pocket (we do have a "prospect exclusion" clause in case you actually already have a buyer in mind, but that's another story.)
#7, at least in Washington State, is just stupid - it's essentially saying, I don't want any of the agents in the listing office to bring me a buyer that they represent. I am fine with my not being a dual agent, but I'm not fine with cutting off a segment of the market.
In closing. You are to be commended, and I wouldn't do it.
All the best,
Anyone can say that they did "everything they could" and the issues are with the price, the market, etc. Despite all of these, as many stated, there agents who assume that someone else might sell their listing and they can just wait and then show up at closing... How do you protect yourself (as a seller) from something like that happening? Unfortunately an interview, checking references or statistics do not provide the needed reassurances.
Personally, I would find this acceptable (in principle) but it would have to be agreed upon by the principle broker at my (or any) office. I would look for some language that provides stipulations as to the agentâ€™s performance. As written, this would allow a seller to cancel for no reason. I would hate to have an agreement canceled under this rider and find out that the sellers cousin or brother-in-law, picked up the listing or some similar thing! :-)
Keller Williams Realty Group Scarsdale
Would any of you, based on your experience, have "appropriate wording" for the termination paragraph to ensure that if I sign a contract for 6 months and the agent doesn't perform I can get out of it without a penalty? I hope that it never happens, but I read enough to know that like in every specialty you have exceptional professionals and bad apples.
Suggested by real estate lawyer:
"Buyer or Broker may terminate this contract upon submission of written 48 hour notice, in which event this agreement is invalid except for the Ownerâ€™s obligation to pay the agreed upon commission if within 1 month of termination the Owner signs a sales contract during this period and then closes on a property for which the Agent or a Cooperating Broker introduced the buyer during the period of this listing Agreement. Commission is due at closing. Owner(s) will not, however, be obligated to pay such commission if Owner(s) enters into a valid Exclusive Listing Agreement with another New York State licensed real estate broker after the expiration of this Agreement.".
Any comments? Would you find this a fair, acceptable statement?
Happy Holidays to all of you!
Happy Holidays to you and your family.
MaryAnn Dempsey, Realtor, C.D.P.E.
I agree with Jeanne. The dual agency clause actually has two facets. One is ACTUAL dual agency where one agent is representing both the buyer and the seller. (This is actually a concept that isn't really possible. An agent can't provide absolute loyalty to both the buyer and seller. It is possible to have a listing AND bring the buyer but the buyer must be informed that the listing agent works for the seller and that he/she can present offers to the sellers but they shouldnâ€™t talk to the agent about their negotiating strategy as the agent would be bound by agency law to tell the sellers anything they hear.)
The other scenario is dual agency with designated agents. (Agents work for the same company but are designated to each represent the buyer and seller. The COMPANY is the one in Dual Agency.) As Jeanne mentioned, if you are dealing with a larger company with many agents, this is a common situation and I donâ€™t think youâ€™d do well to take yourself out of that game.
Based on your questions and contractual requests, it sounds like you, or someone you know, may have been burned in the past. Yes there are plenty of agents that consider their job finished once they get your listing! I am not one of those agents, nor is any agent that finds themselves in the top 2% of their field these days! I take my fiduciary responsibility to my clients VERY seriously. The only time I would ever turn down a listing is if the seller is completely unrealistic about their homeâ€™s value. That doesnâ€™t happen very often in my world though. (Wellâ€¦.I DO often have to show homeowners the recent sales comparables to get them in the right ball park! If you do that correctly and effectively, they usually see the light!)
I have had only one client ask to modify Exclusive Right to Sell to the extent that you are and I made it happen as I knew, that it wouldnâ€™t be an issue. ïŠ
Happy Holidays to all,
Keller Williams Realty Group Scarsdale
I could spend an hour explaining the answer, feel free to call me 914-723-5555... some of the points are not an issue at all, some of the points would cause a broker to not wish to take your listing. Believe it or not our firm turns down more listings than we accept.
However understanding why a broker would take that position is important to you. As I mentioned in another post, we would be happy to discuss this and you do owe it to protect your investment to spend a little time with Engel & Voelkers. I look forward to meeting you when an only if you wish..... best, Jon
What we do know is that you are interviewing several brokerages/offices/agents and they all desire your business - that is all good. So be sure the commitment they make align with your goals and that you are comfortable with the agreements.
Unwavering Commitment to Service
1. Ensure that the contract clearly spelles out that the commission is due only upon successful closing. The contract now states: â€œOwner(s) understands and agrees to pay the commission referred to in paragraph 3, if (a) the property is sold or transferred, or (b) is the subject of a written contract of saleâ€¦â€. This paragraph assumes payment of commission even if the property was not closed.
2. Removed the paragraph regarding an exclusive agreement for rental. This doesnâ€™t belong in the sales agreement. If I would ever want to rent, I can sign a contract for that with whoever I might want to pick at that time.
3. Ensure that my obligations upon termination of the contract are not completely â€œopen endedâ€. The contract now states: â€œOwner(s) understands that if Owner(s) terminates the Agent's authority prior to the expiration of its term, Agent shall retain its contract rights (including but not limited to recovery of its commission, advertising expenses and/or any other damages) incurred by reason of an early termination of this agreement.â€. The lawyer removed the â€œnot limited toâ€ and â€œany other damagesâ€.
4. Have a way out of the contract with no penalties if the agent doesnâ€™t perform (particularly if the term is more than 3 months).
5. Include the list of provided services with their frequency, as applicable
6. I want to pay half of the commission to the listing agent if I bring the buyer.
7. No dual agency.
The agents I talked to told me that all of the above is common practice. If thatâ€™s the case (and they are honest professionals) they should not have a problem enforcing it via the contract that I have to sign and is legally binding.
I am curious: which of the above changes you would have a major issue with and why.
The agreement is not a state form as stated below by someone but it is a binding legal contract.
Agents are not allowed to make changes only the Broker can perhaps make changes if they are not being asked to break any existing state regulations.
If you need any help, please feel free to contact our office and we can give you the telephone number for various legal hotlines. However agents and brokers are not allowed to offer advice outside of their expertise. Best wishes this holiday season.
None of us who have answered so far practice in NY and neither do I, so your best answer will likely come from a local who does business there. My thoughts on the subject are that it really depends on what type of changes you are making and how flexible the specific agent/brokerage is.
Personally I've added addendum to my listing agreements regarding very specific issues which pertained to a given property or client. Big changes can present problems and need to be reviewed by the agentâ€™s broker or attorney which add cost and complexity.
My suggestion is to discuss with your attorney how important the changes you want really are, discuss your issues with the best agent you can find and hear them out if they say no or want to adjust it. Best of luck.
Our contracts have passed rigorous inspection by lawyers who specialize in Real Estate Law. I suppose you could suggest it, but I doubt seriously you would have any brokers willing to make changes in a standard listing agreement.
For me, the answer would be, no. Getting houses sold nowadays is difficult enough, but if you want to add on to my burden the need to have my own brokerage having an attorney review on your attorney's addendum, plus convincing the MLS that the addendum doesn't invalidate the listing . . . may-be.