Agent is not doing his job!

Asked by Annoyed Seller, Seattle, WA Mon Jun 22, 2009

I received an email today from a possible buyer. She tracked me down on via the internets. I was informed that my agent refused to show her my home. The situation was as follows:
The potential buyer's agent was on vacation last week.
The Potential Buyer (PB) called my listing agent (LA) and asked to be shown my home.
To which my listing agent responded with, "sure, do you have an agent representing you?"
PB replied, "Yes, however, my agent is unavailable. Would you meet me at the listing and let me inside?"
LA stated that this is the job of her agent and not my LA's responsibility and refused to show my home to a potential buyer.

When i confronted my agent about this email. He responded that any serious buyer would have a buyers agent able to let the buyer in. I contend that my agent was not doing his job and wish to terminate our listing agreement. Do I have grounds for this? Is my agent's position a commonly held one within this industry?

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Answers

25
Alan May, Agent, Evanston, IL
Tue Jun 23, 2009
Yes, this agent's position is a commonly held one, in our industry.

Personally, while I understand the argument about liability... I think if agents take their eyes off the "commission" ball for a moment, they'll recognize that their fiduciary duty to the listing (to the SELLER) over-rides any other concern.

Under the circumstances you described, I too, would have asked if they were represented. If their agent was unavailable, I would have asked if their agent had a back-up agent who could show the property. If after investigating several other possibilities, the only way this potential buyer could view the property was if I (or one of my designated agents) showed it to them... then that's just what I would do.

I would not be interfering with a contractual situation between the buyer and their agent, as I would be making no claim on the buyer's side commission... I would not be claiming procuring cause... I would simply be providing ministerial acts for that buyer, in the absence of their agent. Period.

See how easy it becomes when we stop chasing the commission?
5 votes
Grace Hanamo…, Agent, Cupertino, CA
Mon Jun 22, 2009
Hello Annoyed and thanks for your question.

Although I understand your frustration, I'm going to side with your agent on this one. It is true that your listing agent is there to work for you and to represent you in the sale of your home as defined by your listing agreement. However, the "bubble" of representation does not necessarily or automatically extend to a represented buyer without the consent of the buyer's agent. While buyers who are represented by other agents may attend open houses and view your home without their agent being present, it is a far different matter to show a home to a buyer who is represented by another agent on a private tour of the home. There's always liability to any agent showing the home, which liability will fall squarely upon the shoulders of your agent and you, as the principal, if your agent shows the home to the potential buyer and something should happen. Also, without the buyer's agent's consent, there's an argument that your agent may be interferring with preexisting (and possibly contractual) relationship between the buyer and his/her representative.

In situations like this, had the buyer truly been represented by an agent, that agent would certainly have provided his/her clients with another agent with whom the buyers could contact in order to see homes. So, in this instance, your agent is correct that responsible Realtors will provide their clients with coverage at all times.

I will also agree with your agent that serious buyers will operate far more differently than you have experienced with these potential buyers. In fact, what is far more likely to have been the situation here is that the "potential buyers" were NOT represented, and only used the oft stated excuse that the "agent is out of town" to, hopefully, gain access into your home while also avoiding the possibility that your agent would try to recruit the buyers as new clients. Personally, I agree with your agent that such tactics are often employed by buyers who are not wholly committed to purchasing a home, but have curiosity because they also happened to miss all of the "open houses" that were held at your property.

In this instance, I will say that your listing agent did his job in protecting your property (and you) from harm, while also observing the conventions of a contractual relationship between buyer and buyer's agent.

Sincerely,
Grace Morioka, SRES, e-Pro
Area Pro Realty
San Jose, CA
2 votes
Annoyed Sell…, , Seattle, WA
Tue Jun 23, 2009
Also, while I understand that the buyer's agent may also be at fault in this instance. I have no control over that relationship. It appears that, in this instance, we have 2 agents who are either lazy, incompetent, or both. And the only person who gets screwed is me.
1 vote
Annoyed Sell…, , Seattle, WA
Tue Jun 23, 2009
Thanks for all the feedback. You have all been very helpful.

A few things I don't quite understand:
Is liability as Grace Morioka described it really an issue? If so how do you people have open houses all the time without having people signing waivers just to enter a listing? I find the liability excuse very hard to believe.

I think many of you have made it clear that commissions play a major part in what my LA wishes to do or not do. If the PB did not have an agent, my LA would have shown my home in hopes of earning double commission, but since the PB had an agent, my LA chose not to get off his ass and unlock a door. I don't quite understand this since my house is listed at $650k+ (I believe a fair market value) assuming the worst and it sells for $600k, my listing agreement is for 5% commissions. My LA stands to make 2.5% of $600k, or $15,000. He won't go unlock a door for $15,000!?!?

The PB in this story saw my home yesterday with her agent, my agent was not present. I sent my LA an email yesterday stating that I wish to terminate our agreement, however his lockbox is still on my door. If they make an offer, does my LA have a claim on the commission?
1 vote
Kevin Lisota, Agent, Seattle, WA
Mon Jun 22, 2009
Your listing agent's job is to get your property sold via all means possible. It seems that he is ignoring this basic responsibility to you as the seller. I would think this is certainly adequate grounds for termination of the listing agreement.

As a matter of policy, we will always make an effort to get the property shown in a scenario like this. Do I care if I spend some extra time with a buyer who already has an agent? Of course not. My job is to get the home sold. I can understand if agents are annoyed if they think that the buyer's agent is shirking their responsibility to show homes to their client, but job #1 remains to expose the home to the most potential buyers.

If the conversation with such a buyer were to delve into sensitive issues, it is appropriate and professional to deflect those inquiries back to their agent. Questions like "what will the seller accept?" or "what should I offer?" come to mind.
Web Reference:  http://blog.findwell.com
1 vote
Steve McDona…, Agent, Seattle, WA
Mon Jun 22, 2009
I find it hard to believe in this market that a responsible listing agent wouldn't find a way to show a property regardless of whether the prospective buyer has an agent or not. Are we so afraid to spend 30 minutes out of our day to help our client achieve their goal. Our job is to get the property sold. If that means we help a buyer view our listing only to have them write an offer with the assistance of another agent, then so be it. Clinging to these 'principles of old' when it comes to real estate today means you just don't get it. What appears more important is a concern over another agent possibly benefitting by the listing agent showing the house on their own time. How is that the listing agent can hold a (Sunday) public open and facilitate potentially represented buyers viewing a listing unassisted by their agent? Unless you live under a rock you must recognized that the industry is dramatically shifting with every passing day. The Internet is rapidly reducing the role of the agent. That precious listing information once held captive by proprietary books is now readily available for anyone with a home computer. Do you cross the boundary of agency by responding to a sign call and facilitating an interested buyer? That will really depend on how you conduct yourself during the showing. If you were an agent that had no ties to the property then certainly you have the right if not duty to decline the request. But hogwash when it comes to liability and agency as an excuse for refusing to show your listing. Get the job done. And something tells me that any review board in this state would have enough common seese to recognize when an agent has been lax in their duties and responsiblities to their client should a question of commission be raised. As they say, customer service will rule the future of real estate.
1 vote
Kary Krismer, Agent, Renton, WA
Mon Jun 22, 2009
"You absolutely have grounds to terminate your listing agreement with your agent, however, if this buyer makes an offer within 6 months of your contract rescission with your current listing agent, they are entitled to compensation because technically they procured the buyer. "

I'd suggest consulting an attorney to get a formal opinion on that, but IMHO the standard listing agreement only includes provisions for commission to the extent a commission is not paid. Thus if there's a new agreement calling for the same commission, no commission would be owing.

I find the behavior of the listing agent to be grossly deficient. Their job is to get the listing sold. We'll show our listings in this type of situation, and if the buyer is truely unrepresented, we'll let them know that one of their options is to obtain their own agent (or attorney). Again the goal is to get the house sold, not to earn a double commission.
1 vote
Grace Hanamo…, Agent, Cupertino, CA
Mon Jun 22, 2009
Hello Patrick and thanks so much for the accolades--always good to be acknowledged.

Actually, however, I was referring to all liability from showing the home, to theft, to "slip and fall" or injuries, to unusual circumstances and not just to the tactical issues related to selling a home. Anytime someone enters a home with an agent, that agent takes upon himself or herself to ensure the safety of the home as well as that of the visitors. As a result, each of us, as real estate professionals, should screen those individuals with whom we work to ensure that neither we nor the properties we'll be showing will be endangered by the clients. It's an extreme example, I know, but it something that for which we should all be consciously aware.

Finally, I think that James Goodman said it best in his comment below "We (as agents) have a fiduciary responsibility to our clients, therefore, your agent should be showing your home to any qualified buyer who is interested in seeing it." Since the potential buyer in this particular scenario was "represented" by another agent, for the listing agent, that buyer was not actually a "qualified buyer." The buyer was qualified as a buyer for his/her agent only, but not qualified by the definition of the listing agent.

I understand everyone's comments that they would accommodate the request of the potential buyer, but, I always harken back to one of the very first things I learned in this business and that was "respect" for the contract between any client and his/her agent. It is the reason that we do not "solicit" clients belonging to other agents, and that we discontinue all conversations with represented buyers without their agents present. That same respect should similarly carry over to showing houses to buyers who are or say they are represented. The only instance in which I might consent to show the home is if the agent contacts me and asks me and provides me with permission to show the home to his/her client. I am never reluctant to spend time to show a home to a potential buyer, but I will take care never to be disrespectful to a real estate colleague or to interfere with an agency agreement belonging to another.

Perhaps if we all similarly refused to show homes to represented buyers without the agent's permission, we would encourage buyers to be truthful and honest--which is, after all, the basis for any good relationship or eventual sales contract.

Just my thoughts!

Sincerely,
Grace Morioka, SRES, e-Pro
Area Pro Realty
San Jose, CA
1 vote
James Goodman, Agent, Seattle, WA
Mon Jun 22, 2009
Yes...you can terminate your agreement for any reason. I don't know of one Broker who would not release an unsatisfied client.

Ultimately it's the duty of your Realtor to best represent your interests...and getting your house sold is the number one priority. We have a fiduciary responsibility to our clients, therefore, your agent should be showing your home to any qualified buyer who is interested in seeing it.

I would talk with your agent again and let him/her know your expectations. If he or she is unwilling to work to your expectations, then you should find another Realtor who will.
1 vote
Phoebe Under…, Agent, Seattle, WA
Mon Jun 22, 2009
You absolutely have grounds to terminate your listing agreement with your agent, however, if this buyer makes an offer within 6 months of your contract rescission with your current listing agent, they are entitled to compensation because technically they procured the buyer.

Proceed with caution.
1 vote
gabriel palo…, Agent, Pompano Beach, FL
Sun Jul 4, 2010
One can always find a reason to terminate an agreement. The question is can the one with the agreement have a recourse if they disagree? Yes they can take legal actions if the agreement was not adhered to.
0 votes
No Name, , Seattle, WA
Wed Jun 24, 2009
Annoyed,

I do want to add two more things.

First, I suggest that you sit down with your agent and have a frank, polite and professional discussion about your expectations. It's likely better to come to agreement than create a larger issue. If he/she cannot meet your expectations, then review your options. If you can't come to an agreemetn, then you have another check box question for the next agent. :)

Second. Is it important in your line of business that people be able to get your email address through an internet search? If yes, then no worries. If no, then you may want to review your identity theft profile.

Regards,
Web Reference:  http://www.dugaldallen.com
0 votes
Anna M Brocco, Agent, Williston Park, NY
Wed Jun 24, 2009
If the buyer had a buyer broker agreement with his/her agent, not sure I would show the house either; the potential buyer should have requested a back up agent before his/her agent became unavailable; therefore not sure your agent is totally at fault for not showing, too much liability.

Anna
0 votes
No Name, , Seattle, WA
Wed Jun 24, 2009
Annoyed,

If the story is accurate, then the Listing Agent really should have tried to find a mutually acceptable time to show the home *after* having qualified the buyer as a valid prospect with a current pre-approval from a bank or other financial documentation. That's important. It's not in anyone's interest to show the home to an anonymous lookie lu without some proof that they're good for the money. It's a waste of his/her time and yours as you vacate for the showing.

Having said that, I once had some potential buyers get snippy at me when we were unable to find a mutually-acceptable time to view the home. I had meetings and family commitments that day and they wanted to get in that day. It happens.

You're right, we're paid to sell your home, so opening up for the odd unrepresented buyer or otherwise represented buyer is par for the course - subject to the above qualification. Why else do we put a sign out in your yard with our phone # on it?

Grace, I beg to differ: not showing a home because of some perceived "liability" is a pretty lame excuse for not serving your client's best interests. How do you justify showing *anyone* at that rate?
Web Reference:  http://www.dugaldallen.com
0 votes
Steve McDona…, Agent, Seattle, WA
Wed Jun 24, 2009
AS,
While I am not a lawyer nor an insurance expert, I believe the real liability and exposure is always upon the homeowner. Should someone be injured while viewing your property it is possible they may want to bring a law suit depending on the circumstances. Certainly a clever lawyer may advise the plaintiff to name the real estate agent in any suit since they more likely have 'deeper pockets'. It may also be true that they have better legal resources should something like a personal injury lawsuit arise. So whether it's a selling (buyer's) agent or listing agent showing the property they do open themselves to such risk. The listing agent may not want to take such a risk since there is no (additional) monetary incentive involved when the buyer already has an agent. And there is the possibility that an unsavory character may be looking for a get rich quick opportunity. But some careful screening about the buyer/agent relationship and pre-approval status should help eliminate such possibilities.

On a separate note, an agent should never leave town for an extended period without having a fellow agent cover their business. That could be another sign of an agent who puts their (full) commission above their client's needs.

Good luck.
0 votes
Seattle Real…, , 98103
Tue Jun 23, 2009
Dear Annoyed Seller,

This is such an obvious misrepresentation on your behalf! In my 12 years in the industry, half of those as a Designated Broker and Certified Real Estate Instructor, I can tell you this agents actions...or lack of action in this case, is a tremendously sad statement on our industry and should be reported to his Broker!


Furthermore, The Law of Real Estate Agency clearly states in Section 4(e) Unless otherwise agreed to in writing after the seller’s agent has complied with section 3(1)(f) of this act, to make a good faith and continuous effort to find a buyer for the property;

If I were this guys Broker and knew this was his standard of care for his clients...I'd drop him like a hot rock!
0 votes
Alan May, Agent, Evanston, IL
Tue Jun 23, 2009
Yes, your agent would still be inline for his share of commission. And if your property sells, based on this latest showing... that will be the least of your concerns.

I agree, the liability issue, to me, sounds more like an "excuse" than a valid reason. And it doesn't appear to be a "lazy" issue so much as it seems to be more of an "old school" style of business model.

Just because you've notified your agent that you "want" to terminate, does not mean that they have agreed and accepted your termination. You cannot unilaterally terminate a bilateral agreement (it has to be agreed to by both sides)...

Good luck.
0 votes
Courtney Coo…, Agent, Seattle, WA
Tue Jun 23, 2009
Kary is right about the clause in our NWMLS. There is a sentence in the Release of Listing form that eliminates the risk of you paying a double commission, but I would still get some legal advise in case things get tricky. I
n reading these responses, it seems pretty clear that most local Washington State agents agree that your annoyance is warranted. It just isn't the norm in our corner of the world to ignore any potential buyer- we all seem to agree that the house should be shown and exposed because our job is to sell it. Good luck no matter what you decide to do:)
Web Reference:  http://www.cooperjacobs.com
0 votes
Dana Schuster, Agent, Slidell, LA
Mon Jun 22, 2009
2 thumbs up to you,Grace! As always,thanks for your honest insightful answers. You are the best & i am the president of the Grace fan club!
0 votes
Courtney Coo…, Agent, Seattle, WA
Mon Jun 22, 2009
That is pretty bad - sorry that happened to you. Unfortunately there are a lot of agents out there trying to freeze out buyers if they have agents and it makes absolutely no sense at all. The job is to sell your home. Yes, most brokers I know will release an unhappy customer from their listing - no one wants to work with someone when they are dis-satisfied. I am glad that buyer tracked you down. You need to know what is going on with your home.

I apologize that this happens. I don't agree with a lot of the arguments here - they make sense, but the bottom line is to do the right thing and that is to ge tthe house sold - even if you have to do extra work with out extra pay. Are you sure there weren't other circumstances? Maybe there is another side?
Web Reference:  http://www.cooperjacobs.com
0 votes
Patrick Beri…, Agent, Seattle, WA
Mon Jun 22, 2009
Grace, you have some EXCELLENT points--I wanted to comment on the "liability" you mentioned. As a listing agent, my duty is to represent the seller. If someone wants to see the house, I can choose to show it or refer that person to another agent. I cannot know if this person has signed an exclusive buyer agency agreement with another agent, nor do I care to know. Providing real estate services to a person creates a perceived agency relationship.

What I think most agents do not wish to do is spend time, energy and money to work with a buyer only to have that buyer submit an offer with a buyer's agent that we didn't know about until the offer shows up. Some agents don't like doing dual agency, but that's a whole other topic.

I agree with you, and have found that most of the "buyers" who call me to see one of my listings are not represented, or think they can save money by negotiating on their own behalf and then having a "friend" write up the offer.

For me, the easiest way to handle this is to ask people if they're represented. If so, I suggest they have their agent show the property. If not, then I offer to provide them with a buyer's agent. Most of the time, as soon as I suggest this, they suddenly have an agent that they're working with. Amazing!

If a "buyer" says they no longer want to see the house because I don't want to show it myself--Even though I'm attempting to get them in there with another agent--Then they aren't serious buyers. (Either that or they think they don't need an agent).
0 votes
Dana Schuster, Agent, Slidell, LA
Mon Jun 22, 2009
One other aspect that should be considered is that the buyer agent should have arranged for another agent in the office to cover all business in the agent's absence. This is standard practice. in my area at least, it is considered unethical for the listing agent to communicate with the buyer in any form. The buyer agent was negligent.
0 votes
Karissa Webs…, Agent, Seattle, WA
Mon Jun 22, 2009
You agent's job is to sell your home, and particularly in this market that means working hard every day. I would be mad as hops as well if I were in your shoes. Read over the contract you signed with your agent--if he is not performing his duty you should be able to get out of the contract. Your contract is with the broker anyhow, so at the very least you should be able to contact the broker & request a different agent to represent you.
0 votes
Wayne Lubin, Agent, SEATTLE, WA
Mon Jun 22, 2009
I don't know what the Multiple Listing Association says so this is hardly a definitive answer however, I'm surprised your LA couldn't be there to let the potential buyer in and to answer any questions they may have.
0 votes
Patrick Beri…, Agent, Seattle, WA
Mon Jun 22, 2009
It sounds like the buyer's agent is not doing his/her job by having someone cover for their absence. But that point notwithstanding, a listing agent's job is to get the house shown. I can't speak for your agent but if this situation happened to me, I would either show the house myself or have another agent meet the buyers at the property. In this market you are crazy to turn away buyers.

It's my opinion that you should be able to terminate your listing agreement at any time for any reason--No "grounds" are necessary.

Good luck!
0 votes
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