Q: A Realtor holds an exclusive listing to sell my home. It will expire in February. Since signing the listing, I have failed to see signs of sales activity on the part of the Realtor, and while I recognize that times are bad, I am growing very impatient.
While the exclusive listing is in force, may I legally take steps to find a buyer? If I find a buyer, should settlement be postponed until after the expiration of the listing? What are my legal obligations to the Realtor?
A: Generally speaking, there are three kinds of real estate listing agreements:
* Open listing. Under this kind of arrangement, the owner of property gives a real estate broker authorization to sell the property, but there are no prohibitions on the owner--or other brokers with similar open listings--to sell the property. A commission is owned only if the broker is the "procuring cause" of the actual sale.
Most real estate brokers are unwilling to take an open listing because they may do a lot of work and not get a commission.
* Exclusive agency. Here, the broker is given an exclusive listing, and no other brokers can be given a similar listing during the term of that agreement. However, under such an agreement, the owner retains the right to sell the unit through his or her own efforts. If the owner is successful, the exclusive agency automatically comes to an end, and no commission is owed the broker.
* Exclusive right to sell. This is the typical agreement that most real estate agents favor. It gives the broker an exclusive right to sell your property, and even if you sell it yourself while the agreement is in effect, you will be obligated to pay a commission to the broker. I suspect that your listing is an "exclusive right to sell."
Thus, if you find a buyer during the term of that listing agreement, you would be legally obligated to pay a commission to the agent--even though the agent was not the "procuring cause."
However, you might want to consider terminating the agency relationship. The real estate broker is an agent of the seller. Like most agency relationships, if the principal is dissatisfied with the services of the agent, the agency relationship can be terminated. If there is an exclusive agency, it can be terminated by the seller upon proper notice to the broker--but only before the broker has spent any money or time involved on the listing.
If the listing is nonexclusive, the agency may be terminated by the owner without any notice to the listing broker.
I suggest that you sit down with your broker and discuss the entire matter. The broker may be unaware of your concerns, and it may also be that the broker has spent time and effort on your house. If you are dissatisfied, and if the broker has not put in the time, feel free to cancel the listing by giving the broker written notice.