Rentals in New York>Question Details

Mimi, Renter in New York, NY

Do I have to pay my NYC rental realtor when he did nothing but obstruct the rental process?

Asked by Mimi, New York, NY Sat Jul 28, 2012

I live 2 hours from NYC, contacted a realtor to set up showings with NO FEE NYC rentals. Was shown 2 apts. 1st was too small. 2nd apt was in a bldg I had found on my own & already visited 1 month earlier. As I applied for 2nd apt with on-site leasing agent, realtor presented me with NYS Landlord/tenant disclosure & Fee Agreement - I objected b/c these were supposed to be NO FEE. His answer "only the 1st apt was NO FEE" - During the next 2 weeks I almost lost the apt 3X b/c he never informed me of the additional paperwork and deadlines to complete the application. All communication from him was email & voicemail threats "If you don't call the lease agent & get her what she needs, you are going to lose the apt tomorrow AM". I ended up working directly with the on-site bldg lease agent. I got the apt thanks to on-site agent but realtor did not even show up to lease signing...now he's emailing me to get his check! Can I refuse to pay him for non-performance?

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Mimi,

Let's separate out the different issues here:
- If you saw the rental apt. on your own first, you should not have to pay an agent fee.
- Your agent is supposed to have you sign the disclosure upon meeting you. That has nothing to do with the fee; it is you signing that they have made clear to you whom they represent - landlord or you, renter.
- The second document the agent should have you sign is the fee agreement. Then at each place you see, you initial that address. I would hope that you would have told your agent in advance which rentals you had already seen. Then they would not be taking you to what you have already seen on your own. Your agent perhaps is not believing you saw it on your own first because they were not advised of where you had already been. Can you show some proof you were already there? They have gone ahead and made that appointment and as the "procuring" broker are entitled to a fee unless you have some way of showing you already saw that particular apartment. You say you visited the building a month before. Did you actually see this particular unit on your own? If so, why did you not take it then? You chose to engage the services of an agent who did find you this unit. They do seem to be the "procuring agent" which entitles them to a fee.

- "No fee" means if you went on your own, directly to that management company. If you are using the services of a licensed real estate agent, there is always a fee to that brokerage unless the agent informs you that the landlord is paying the fee. That is in the fee agreement they are supposed to present you with upon meeting, before showing you apts. In this very tight rental market, landlords are not paying agent fees. The renter is paying the brokerage fee.

- It seems like there was a lack of communication all around. You didn't say where you had already been, and the agent didn't get the forms signed up front. The agent should be the go between in terms of you getting the right documents to the management and should be at the lease signing. Generally it is at the lease signing where you give all checks - to the landlord/management and to the agent for the brokerage fee. I would suggest you speak with the broker of this agent to get things straightened out.
2 votes Thank Flag Link Sat Jul 28, 2012
Hi Mimi. I'll be brief as almost every response has said the same thing. If you signed, you pay. I don't want to add insult to injury. This story is not at all common with Manhattan brokers but unfortunately, you had the misfortune to get one of the few licensed idiots who lucked into a commission.

What is uncommon and just as unfortunate are renters who will view an apartment that does work for them on many levels, only to NOT take it. I attribute this to the mindset that "...there has to be more than this and now that I know about this apartment, I'll try a broker and see what else there is." Not a good idea in a town with a ridiculously low availability of rental apartments. There you have it. Live and learn. Good luck with your new apartment.
1 vote Thank Flag Link Tue Jul 31, 2012
First of all, on behalf of all us conscientious and ethical agents in NYC, I am really sorry to hear of this awful experience you had. This kind of thing is getting more and more rare, thank goodness, but that's no compensation for your stress, inconvenience and frustration.

If you saw this building on your own before you met the agent, If there is any record of that fact--email, text message, log at the rental agent office, whatever--definitely find that and hang onto it! Maybe you made a note in your calendar, or got a business card that day, have a voice mail message you can archive?, etc. etc. Try very hard to find something you could show a judge if you had to. This is important.

Then, contact the office manager/broker of this agent (his boss) and report the agent's behavior, the emails, and the facts. Sometimes brokers and/or office managers do not know what is going on out there in the field. You may find the broker/office manager is grateful to hear from you. This might be the end of the situation right there. Or......not.

We don't give legal advice of course, but absent a signed agreement, I think the brokerage would have a very hard time collecting anything from you.

If you signed something, however, and it sounds like you might have, what that document says will be important to whether you owe the broker money, or not. By law the agent must have given you a copy of anything you signed. If you don't have a copy, the broker must give you one, and will instantly, I promise.

If you signed an agreement that says you owe a commission for this apartment, then yes you will have to pay the brokerage or you will end up in smalls claim court ($5000 and under).

An agent does not ever have to show up at the lease signing to earn a commission. His failure to let you know about deadlines, etc., is also not relevant to the commission, unless perhaps your signed agreement specifically says so (which is unlikely). It's terrible service for sure, but that's a separate issue.

The commission is earned when an agent is the procuring cause of the transaction. That's the only task the agent really has to perform to earn a commission--to create a meeting of the minds such that two parties want to do a deal. For example, if the agent negotiated your rent amount and/or move in date, then he earned a commission, assuming you agreed to pay one in the first place.

Submitting paper for background checks, dropping keys off at an office, faxing documents to everyone, etc., can be and are often done by unlicensed persons and do not earn a commission. Best of luck to you,

Karla Harby
Licensed Real Estate Salesperson
Rutenberg Realty
New York, NY
212-688-1000x146
kharby@crrnyc.com
1 vote Thank Flag Link Sat Jul 28, 2012
Depends on if and what you signed. People should not only read what they sign, but also make sure they get a copy of it. Most agents are not so shady. Good luck
1 vote Thank Flag Link Sat Jul 28, 2012
That's an awful experience. As a few people mentioned earlier, you should see what you have in terms of paper work proving that you found the building prior to meeting the agent. Also, you said you saw the building before. Did you see that particular unit? If so, then you should have let the agent know which unit you saw as soon as you arrived and recognized the building. If you didn't notify the agent he might think that you are only saying that you found the building on your own in an attempt to avoid paying him. Huge misunderstanding, paperwork should help you clarify. Good luck!
0 votes Thank Flag Link Tue Jul 31, 2012
If you have a signed agreement much will depend on the document....
0 votes Thank Flag Link Sat Jul 28, 2012
This agent sounds shady. Realistically, those forms should have been presented BEFORE you were shown the apartment. There's also the fact that you specified NO FEE. I wouldn't pay him. In fact, I'd probably report him to the NY Department of State.
0 votes Thank Flag Link Sat Jul 28, 2012
Thanks George. I am planning on it. I am the Guarantor and unfortunately my son (over 18) signed the fee agreement so I think I'm stuck. But I may pursue a suit in small claims court.
Flag Sat Jul 28, 2012
As long as you did not sign his fee agreement you are in the clear! Sorry you had such a bad experience.
0 votes Thank Flag Link Sat Jul 28, 2012
Did you sign his fee agreement? If so, you're probably stuck with paying. The agent or his firm may choose to litigate to collect the fee. I can't blame you for not wanting to pay. Your agent appears to have done a lousy job.
0 votes Thank Flag Link Sat Jul 28, 2012
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