Are we liable for fee after expiry of Selling Agreement?

[trinar]

Hi there, our Selling Agency Agreement (WA) is due to expire in a few weeks and we wont be re-signing for various reasons. The section in the contract where we were meant to select wether to Agree or Not Agree to paying the sellers fee after the expiry date if the property sold has been left blank as well as the date to be liable up to. The agent obviously thought it wasnt important or there that there would be a quick sale.

We could have a buyer in 3 months time but he was originaly introduced by the agent. Could we still be up for the fee?

Thanks for any advice.

 

[boods99]

Hi there, our Selling Agency Agreement (WA) is due to expire in a few weeks and we wont be re-signing for various reasons. The section in the contract where we were meant to select wether to Agree or Not Agree to paying the sellers fee after the expiry date if the property sold has been left blank as well as the date to be liable up to. The agent obviously thought it wasnt important or there that there would be a quick sale.

We could have a buyer in 3 months time but he was originaly introduced by the agent. Could we still be up for the fee?

Thanks for any advice.

If you eventually sell to someone who was originally introduced by the agent, you will find in most cases they are entitled to their fee.

Boods

 

[Perp]

I'm with boods99. Legally, you probably still have to pay a fee. Morally, you certainly do.

 

[trinar]

Thanks guys, not really what I wanted to hear. I would be happy to pay a smaller fee for their advertising, but in the contract it was noted that we wouln't pay extra for advertising costs.
There must be a time frame where they can no longer charge the fee if you sell. 6 months, 12 months??

 

[Perp]

There must be a time frame where they can no longer charge the fee if you sell. 6 months, 12 months??

Not really... if they introduced a person to the property who ultimately buys it, you have to pay the agent. And many real estate agencies routinely check publicly available lists of property transfers to see if any of the names of purchasers are familiar, so don't think they'll never find out. Several agents have successfully sued for their fees in exactly this scenario.

 

[boods99]

Not really... if they introduced a person to the property who ultimately buys it, you have to pay the agent. And many real estate agencies routinely check publicly available lists of property transfers to see if any of the names of purchasers are familiar, so don't think they'll never find out. Several agents have successfully sued for their fees in exactly this scenario.

One of the reasons they try to get everyone's details at home opens (OFI's I think y'all call them over east!)

Boods

 

[Perp]

One of the reasons they try to get everyone's details at home opens (OFI's I think y'all call them over east!)

Exactly! They cross-check these lists against the transfer lists, too.

 

[Luv2Travel]

So what if you list with an agent, a buyer is sort of interested but doesn't proceed with an offer. 3 months later, property isn't sold, contract with agent ends. You re-list with another agent. They do all their hard work from scratch, older buyer changes their mind and re appears interested in the property and now buys.

Does this mean agent number 1 is entitled to commission over agent 2? Is this a risk agent number 2 takes when listing a property that has already been listed recently? Or worse still, you could be liable to pay commission twice to both agents?? Or is what's been talked about here only apply if you take off the market and try to sell yourself?

 

[Perp]

So what if you list with an agent, a buyer is sort of interested but doesn't proceed with an offer. 3 months later, property isn't sold, contract with agent ends. You re-list with another agent. They do all their hard work from scratch, older buyer changes their mind and re appears interested in the property and now buys.

Does this mean agent number 1 is entitled to commission over agent 2?

Agent number 1 is entitled to commission. Agent 2, if they know the buyer saw the property before, should offer to split the commission with agent 1, but there have been circumstances where agent 1 came along later, after agent 2 took a full commission (not knowing that purchaser had been introduced to property by agent 1), and the vendor's had to pay out 2 full commissions.

Some agents protect against this eventuality by asking the purchaser to sign something stating that agent 2, and only agent 2, introduced them to this property.

If it later turns out that the purchaser had inspected the property with agent 1 and signed a false declaration, the vendor would have a case against the purchaser for the second commission.

 

[wylie]

Agent number 1 is entitled to commission. Agent 2, if they know the buyer saw the property before, should offer to split the commission with agent 1, but there have been circumstances where agent 1 came along later, after agent 2 took a full commission (not knowing that purchaser had been introduced to property by agent 1), and the vendor's had to pay out 2 full commissions.

This exact scenario happened to us with our last purchase. Agent 2 had us sign something saying that Agent 1 would get a split of commission as she had introduced us to the property a year earlier.

Agent 1, meanwhile, checked who had contracted on the house and not knowing that Agent 2 planned on handing over the appropriate commission, phoned me and wanted me to know she was entitled to part commission.

I had always thought it was something the agents had to sort out, but it was mentioned that a possibility was that we could have had to pay another commission. I never took it further or checked into it further because Agent 2 never was going to "stiff" Agent 1.

 

[Piston Broke]

You can't be held liable for a blank section of a contract.
Unless there's another clause there somewhere.

 

[wylie]

You can't be held liable for a blank section of a contract.
Unless there's another clause there somewhere.

Who are you answering?

 

[Piston Broke]

The original post:

"The section in the contract where we were meant to select wether to Agree or Not Agree to paying the sellers fee after the expiry date if the property sold has been left blank as well as the date to be liable up to. "

If it was left blank and signed by both parties as blank, then it's not part of the agreement imo.
Unless another clause in the contract that makes it.

 

[Propertunity]

Not sure how it works in WA, but in NSW an agreement with blanks, as described, is invalid and would not entitle the REA to a commission at any time (or to payment of advertising).

 

[wylie]

I missed the "blank" bit . I wonder if PeterW can answer that one?

 

[Perp]

Not sure what the effect of the blanks are; it would depend on the legislation surrounding the agreement. Sometimes the legislation specifically says how it's to be treated if a section is left blank. Is there any fine print on the form?

I guess I didn't pay too much attention to it because I'd want to do the ethical thing, anyway, rather than stiff the agent on a technicality. But hey, I know plenty will disagree.

 

[trinar]

The last few posts have lightened my heart. To clarify, the "blank" section reads:

13. Sale Takes Place After the Exclusive Rights Period : The seller AGREES/DOES NOT AGREE (cross out whichever does not apply) to pay the agent the Agents Selling Fee in circumstances where the sale of the property to a buyer introduced to the property by the agent during the Exclusive Rights Period does not take place until after the expiration of the Exclusive Rights Period provided that the sale takes place prior to midnight on ..../..../...

Neither the Agree or Not Agree has been crossed out and the date has been left blank.

Further down the agreement there is a clause saying we will pay NIL marketing charges or expenses.

Safe or not safe??

 

[Perp]

The last few posts have lightened my heart. To clarify, the "blank" section reads:

13. Sale Takes Place After the Exclusive Rights Period : The seller AGREES/DOES NOT AGREE (cross out whichever does not apply) to pay the agent the Agents Selling Fee in circumstances where the sale of the property to a buyer introduced to the property by the agent during the Exclusive Rights Period does not take place until after the expiration of the Exclusive Rights Period provided that the sale takes place prior to midnight on ..../..../... ... Safe or not safe??

I'd say we still don't have enough information to know, without knowing more about how the laws work in WA.

It might be that the default position is that the agent is always entitled to a commission for any buyers that they introduce (as I believe is the case in QLD), regardless of when the sale takes place, and the effect of this clause - if filled out - is simply to limit the time period over which the first agent has any claim. If that was the case, leaving it blank might mean that you revert to the first agent having an indefinite claim.

But as I said, it would depend very much on the particular governing legislation, with which I'm not familiar. And I suspect the fact that the claim of agent 1 can be limited at all means that WA legislation is different, and it's reasonably likely the case that in WA, agents are only entitled to commissions during exclusive rights periods, and this clause was inserted to protect agents (after all, the "standard" contract is usually drawn up by the real estate institute ).

So my short answer is "I don't know, but it's sounding more likely in my completely amateur opinion that you are going to be OK". That's helpful, huh?

Does anybody know if we have any WA agents participating on the forum?

 

[trinar]

Thanks Ozperp, I'm just going to wait the couple of weeks we have left on the contract and then aproach the agent about it. I will let you all know of the outcome.........

 

[superb]

We have been in a similar situation as a purchasers. We were introduced to a property by Agent 1, we were not in a position to make an offer at the time. House did not sell and vendor listed with agent 2. We inspected the property again with agent 2 and disclosed to her that agent 1 had introduced us to the property. We indicated we wanted to make an offer. She came back to us stating the vendors will not consider a sale to us because Agent 1 was contacted and would not negotiate a part commission with agent 2 and the vendors were frightened of having to pay two commissions. As far as we are concerned, agent 2 should not be entitled to any commission as Agent 1 introduced us to the property. We are in the unfortunate position now of knowing the house we love is available but the vendors will not sell to us. Is there anything we can do in this type of situation?