Maddernhell

Just caved in and paid the SOB off. Every where we turned; District Attorney, lawyer, State Rep, we got nowhere. I have never been so discouraged in my life. I don't have the energy right now to explain everything that has happened to us in this situation but some of my other threads will help if anyone is interested.

Thank you to all who have tried to help, it gives me some faith in my fellow man. And it sure is a breath of fresh air hearing from decent, honest people who actually have an idea of fair play. - Tue May 19 2009, 11:10

Thanks,

buyer went to property without our knowledge or consent, fraudulently filed for an onlot septic permit from the SEO stating he was owner or authorized agent of owner so he could dig up existing septic system. This was done on last day of contingency period. Then he never put anything in writing just demanded we let him back on property to dig more.

We refused to let him back on property as our agent said he had no right. He failed to get required mortgage commitment so we terminated the contract.

Now we have signed a contract with another buyer but lis pendens clouds title.

He has been threatening to file for specific performance for almost 6 months, can he do that after putting it on paper he wants cash?

I am under the impression specific performance only applies when monetary damages would not be equitable. He has stated he is after money not the property. - Tue May 19 2009, 09:14

I guess I should clarify the situation a little better.

We are the seller's.

The agency (broker) we listed the property with wrote the sales contract as:

The agent we listed with being agent for the seller.

The broker then listed another agent from the same office as subagent for the seller.

There are 2 buyer's listed in the contract, one buyer is the son of the subagent, the other buyer is a licensed real estate broker in PA.

We were never told the subagent had a family tie to one of the buyer's and why did the buyer who is a broker not represent the buyer's himself.

WEW!!! Hope I didn't complicate this more than it is!

Does something smell about this deal or am I worried about nothing?

Thanks! - Wed May 6 2009, 19:25

Thanks all,

No they did not check the designated agent box. They checked the subagent for seller box. Here again is how the (owner - broker) of the agency explained the question.

"Agency is not a component of the actual contract because the contract is between seller and buyer not the agencies(if 2 are involved) It does not make the contract invalid it is a statement concerning representation only of the parties involved. The contract would be valid if this part of the contract was blank."

Here is some more of what the listing broker said about her agent being a subagent:

(blank) did not feel comfortable representing a Broker of another competing company as their agent...whether a family member is involved or not It is definately wrong to represent a licensed Broker from another agency located right here in Tioga County. And I am pleased she was an agent representing your interests. As a matter of fact: a new sales agreement is currently being drafted in Harrisburg that puts Seller Agent/Subagent on the same line with only one check mark available. In any case right or wrong it means that the agent is working for the seller.


Notice she doesn't answer the question of it being proper or not for an agent in the employ of the listing broker to represent themselves as a subagent. - Wed May 6 2009, 18:50

Our broker just sent me another answer concerning the question of a subagent working for the listing broker. This seems to state that the contract is valid.

"Agency is not a component of the actual contract because the contract is between seller and buyer not the agencies(if 2 are involved) It does not make the contract invalid it is a statement concerning representation only of the parties involved. The contract would be valid if this part of the contract was blank."

It does not clear up the question of the listing agent and subagent working for the same broker being proper or not unless I am missing something. - Tue May 5 2009, 11:02

Yes, and it has turned into a mess.

It seems near impossible to find out if the "subagent" in question has misrepresented herself and if she did, what effect this may have on the contract.

I just received an "answer" from our broker but she really did not answer the questions. She said she is concerned I am trying to use her words against her. If there is nothing improper in this contract how could I possibly use anything she says to clarify the matter against her?

Am I wrong for asking the broker to explain things I don't understand?

If the relationship we have with the broker is considered fiduciary shouldn't she be obligated to answer my questions?

Thanks - Tue May 5 2009, 10:37

Thanks again,

Could you tell me, if the agent in question cannot be a subagent but represents themselves as such on a sales contract, does this have any bearing as to the legality or validity of the sales contract?

By the way, supposed subagent is the mother of the buyer, of which we were not informed until way after the fact. - Tue May 5 2009, 09:04

Thanks again Michael,

I am also wondering why our broker will not respond to my questions. It would seem to me they have a duty to keep our best interest in the forefront. That being said, if they cannot answer questions are they acting in our best interest?

My questions concerning subagency are these:

If the subagent is in the employ of the listing broker and as such would not be considered a subagent what would be any possible reasons for them representing themselves as a subagent?

Is this some kind of slick way for the broker to keep all of the comission in house?

If this is a misrepresentation by the broker or agents of the broker, what effect would this have on the sales contract? - Tue May 5 2009, 08:11

Thank you Michael,

What about a listing broker who appoints a subagent who works for them?

The definition of subagent:

""Subagent." A broker, not in the employ of the listing broker, who is engaged to act for or cooperate with the listing broker in selling property as an agent of the seller. A subagent is deemed to have an agency relationship with the seller."

seems to imply this cannot be done. Any idea about this being improper? - Tue May 5 2009, 07:30

1st, buyer's had the right to have ann inspection of the septic by a qualified professional inspector within the contingency period which they did, the test failed. 2nd, buyer's were not satisfied with the inspection report so they took it upon themselves to apply for an onlot septic permit claiming under penalty of unsworn falsification they were the owner or agent of the owner. 3rd, they took the SEO (who can not do a real estate transfer inspection unless the municipality has it in their fee schedule, which in this case they do not) and a backhoe to the property and dug up the yard and drove over the existing drainfield. Anyone with a lick of sense would know you do not drive over any part of a septic system. 4th, They never responded to the inspection report or performed any options outlined in the contingency. 5th, he is using the Lis Pendens to try and extort money, first he wanted $600 to cover what he spent. According to the contract it was to be at his expense. To try to get him to go away we offered to pay him his $600 and his reply was now I want $2900. - Thu Apr 23 2009, 10:59

To be more clear, the buyer's never responded to the inspection report except verbally stating they needed to dig more. The contingency period has long expired. They never obtained a mortgage committment so we terminated the agreement. According to my agent's attorney it was all done properly. I have yet to hear what our attorney thinks as he is still researching the matter. - Thu Apr 23 2009, 09:03

I keep hearing from people that because this guy signed a real estate contract with us it makes him an owner in equity and therfore has the right to file for a septic permit. I am under the impression that only those with a fiduciary interest can apply for permits. Anyone have any thoughts on this? - Thu Apr 23 2009, 08:50

To Joe the builder, if you feel there is something missing, just ask any question and I will be glad to answer any thing I can.

We have another buyer who has waived all contingencies and has extended their contract several times. They understand the septic has failed and wish to purchace the property regardless. - Thu Apr 23 2009, 08:32

Thank you, I will.

I should also state that there are 2 buyers who signed this contract, the one has been silent so I forget about him sometimes. This second buyer's mother is an agent in my agents office and is listed on the contract as a sub agent for us. Is this anything to cause concern on our part? It seems there has been some in-fighting at my brokers office about this deal. I have heard a little grumbling but am not privy to all I am sure. - Thu Apr 23 2009, 08:27

He is trying to force us to allow him to go back to the property to dig more. He states that we refused to locate the system for him, however we were never informed he was going to the property. I live 10 miles up the road and would have been there with bells on if I had known he was going back to the property. Also his original inspecton report states that all components where located and identified.

I have consulted an attorney, just trying to learn what I can during the boring, stressful time it takes the wheels of justice to turn. - Thu Apr 23 2009, 08:14

Thanks, I have no idea what is in this guy's head and my agent seems confused by his actions as well. My agent says her and her broker are going to file an ethics complaint against this guy when it is all said and done. I don't understand why they do not file it now! - Thu Apr 23 2009, 08:04

Thanks, I will no doubt keep you informed. - Thu Apr 23 2009, 07:35

Thank you, that seems to be the thought of everyone I've talked to as far as him entering the property. The district attorney is looking into this but I don't have much faith that he will do anything as money talks loud and carries a big stick in this county. - Thu Apr 23 2009, 07:03