I agree with the other agents. You never had a contract with this person and so they are not due the commission. I would be glad to help you submit an offer and earn your business.
Please call me and I would be glad to help.
Best of luck. By all means feel free to contact me if you have any additional questions or concerns.
The key here is "There is no written agreement between the buyer and this agent." Without a written agreement, the previous agent is not due any commission. Had there been a written agreement there would have been a determined "hold over" period, during which the agent would be due a commission if the buyer went back to the previously under contract home. But since this is not the case as outlined above, I don't believe the agent has any claim.
I hope that helps,
For further clarification, I wanted to add some more information to my previous answer. Seemingly small technicalities can make a big difference in the outcomes of issues. My answers are based on the question of whether the previous TB is due any commission if the sale goes through. I want to clarify, though, whether this commission is due by you or by the subsequent selling agent.
As my previous answer stated, a written buyer agency agreement or transaction broker agreement is not necessary for a broker to claim a commission based on procuring cause via arbitration. The reason it isn't necessary is because arbitration is solely between broker and broker--not between buyer or seller and broker. Arbitration is an internal function of a board of Realtors for their members and is governed by guidelines established by the National Association of Realtors. When a listing is posted on an MLS, the listing broker has to disclose how much commission will be paid to a buyer's agent and to a transaction broker who cooperates in the sale of a property. The disclosure in the MLS is a binding agreement between brokers who are members of that board of Realtors governing that MLS system. Since a transaction brokerage relationship between and buyer and a broker can be established legally by written agreement OR by default (no written agreement), that transaction broker can claim a commission for procuring cause from the subsequent agent based on the MLS agreement to pay cooperating transaction brokers. Without a WRITTEN buyer agency or transaction broker agreement between you and the previous broker, that broker may not have grounds to get a commission directly from you; however, it would not prevent him from getting a commission from the new selling broker. Of course, to do so, he would have to win his "procuring cause" claim through arbitration. I'm not saying that it even sounds like he was the procuring cause of the sale. As a matter of fact, it sounds more like he wasn't, but we on the outside can't claim to know every detail of the relationship and actions taken from both sides. It would be wise to give your new agent all the details of what transpired with the previous agent so that he/she can make a fully-informed and ethical decision about whether to contact the previous agent or not and clear up any possible misunderstandings in your purchase. Sounds like the previous agent has verbally stated that he's letting the issue go, but, just to be safe, it would be best if your new agent got something in writing from him to that effect.
1. Lack of written agreement(s), and
2. Buyer found the house on their own.
In addition, as a practical matter, I can't imagine an agent having the guts to even file a claim when they were so careless in the first place.
One crucial point that has not been addressed is whether or not the previous broker was the "procuring cause" of the sale. Basic idea of "procuring cause" is whoever initiated an unbroken series of events leading to the decision to buy. It is not required to have a buyer agency agreement in order to be considered "procuring cause" of a sale. If a Definitions of Brokerage Relationships wasn't presented by the broker, it probably wouldn't help the broker's case for procuring cause; but, that form, although required by the Colorado Real Estate Commission, isn't absolutely necessary to claim a commission if the broker can prove that he was the procuring cause. It sounds on the surface that your decision to try to buy the house was made independently from the broker's actions, but you would have to make sure that your decision to buy wasn't based on action, advice or information that came from the broker. If the former broker were to make a commission claim from the subsequent broker via an arbitration panel, that's what he would have to show. Buyers claim many different reasons for switching agents, but, in an arbitration hearing, the commission is awarded to the broker whom the panel believes was the procuring cause. The buyer's reasons for switching would be considered by the panel but don't necessarily determine procuring cause.
The lack of a signed Definitions of Brokerage Relationships is a serious issue but one that would actually be dealt with in a separate procedure from an arbitration hearing. It would actually have to be addressed in a complaiint to the broker's employing broker, the broker's board of Realtors, and/or the Colorado Real Estate Commission.
They have made the mistake of not having a contract with the buyer, and didn't take the time to talk about open houses at early stages, because after all, this kind of scenario does happen, and agents should forsee it.
You must have solid reasons why you do not wish to have that agent represent you. But if the only reason is that the seller would save on the commission, and you would pay a bit less taking the agent off the equation, that's simply not fair because the commission is their pay check.
We never knew there were such differences between types of agents until now. We asked the agent why we never received anything to sign or why we weren't told about what "kind" of agent he was and he said he mentioned it the first time we met, but that was months ago and we don't recall that if it took place. We are sure we never received anything in writing and the agent acknowledges that he never gave us anything. Thanks for your reply!
Keller Williams DTC
However - there's very little excuse for not taking care of this basic issue when (really, before) an offer is written. Of course, there's a lot of paperwork in real estate, so maybe you did get the form but just forgot.
Anyway - that form explains the differences between being an "agent" and being a "transaction broker". In Colorado, every real estate broker/agent/sales person/Realtor is a transaction all the time - with everyone - unless there is a specific, written agency agreement in place. This agreement spells out both rights and responsibilities of both the agent and the buyer (or seller), in writing, and for good reason - to avoid issues like you describe.
So - I agree. No commission is owed to the first person you worked with, and you're free to work with someone else if you'd rather.