I have come across this before. In my case, I was the second agent in line. My buyer(s) explained what had happened and that another agent had showed it to them. They shared this with me after a purchase contract had been negotiated. Without hesitation, I offered to share a portion of my commission with that agent. I value the relationships I have with other agents in my community, and I believe what comes around, goes around. So I just asked myself, how I would want to be treated if I were the other agent? And came up with this solution. It worked out well for everyone involved.
If I were the agent who wrote the contract, I would provide a small showing fee to the agent who showed you the property.
Your second agent may just be entitled to a showing fee. I always ask buyers if they are represented by another agent (CONTRACTUALLY or otherwise). If the answer is in the affirmative, I back off as a professional courtesy.
Your second agent should realize this.... did you advise the second agent of the first?
When you say "attempting to close", do you mean that you used another agent altogether, she showed you this house, and you are now going through the transaction process with this 2nd agent? Because if so, the agent who actually showed you the house and has undergone the entire process with you will be entitled to the commission. Even if she just showed you the house and nothing more, there is something in real estate known as "procuring cause", and the agent who showed you the house may still attempt to go after the commission based on this.
I think your answer will depend on what type of contract you signed with the first Buyer's Agent, and whether or not she was ever involved in showing you the house. Was it an exclusive contract? Read it carefully and see what it entails. There are non-exlusive contract that aren't as binding -- a more informal 'promise for a promise' agreement, in which case your first agent may be out of luck.
In any case, here is a helpful article covering the various Buyer's Broker Agreements:
Good luck with everything!
Sorry to see you in this dilemma. You might contact the agent that showed you the home and let them know what the situation is. Perhaps you can negotiate a small showing fee. In all reality they probably don't want to pursue the case against you.
Thanks for posting this! I think more people need to know that this is a mistake.
RE/MAX Bryan-College Station
I've got more to say but it veers off the topic so I will start a new thread.
The answer to your question is quite simple: be fair to all agents and if you have an agreement with one agent cancel it before proceeding to the second agent.
If this transaction took place in California, basically the agent who wrote the contract would be the agent to get the commission. The second agent should have never taken you out to view property without getting you approved for a loan. Secondly, the second agent has nothing in writing to prove that they actually were working with you, for example a Buyer Broker Agreement. Many agents make this mistake and continue to loose business with this practice. Sorry to say, but you are a fine example why agents should have these agreements in place before showing or working with buyers. If it's not written, it does not count in court.
How did this second agent come to be involved? An open house? You contacting a listing agent from a for sale sign? Or did YOU seek out another agent? Who wrote the contract for the home you are attempting to close on?