We want to sell our house, and have found a real estate broker who meets our needs. What legal documents do we need, if any, to establish a relationship between ourselves and the broker?
Although it is possible to sell your house without using the services of a real estate broker, the great majority of house sales involve the services of one or more agents.
Usually, you retain the services of a real estate broker or brokerage firm. The broker or brokers in that firm may have agents working for them, but you should make sure that you have met the broker before signing up with the firm.
The initial arrangement between the seller or broker and agent must be carefully worked out and a listing agreement in writing should be entered into between the seller and the agent before the agent begins to advertise and show the property. A listing agreement is a contractual obligation and it is important for the seller to understand the type of listing he or she is giving to that broker.
There are a number of listing agreements: Open Listing. Here, the seller gives the real estate agent the right to sell the house, but the seller reserves the right to sell the house himself and to employ other agents as well. If the seller is able to sell the house without the assistance of the agent, no commission is earned. The first real estate agent who finds a someone ready, willing and able to buy is entitled to the real estate commission. Exclusive Agency Listing. Here, the seller gives one real estate agent the right to act as the exclusive agent of the seller. If the agent is able to find the buyer, that agent is entitled to the commission. However, the seller reserves the right to sell his or her house and no commission would then be owed.
Exclusive Right to Sell. This type of listing agreement commits the seller to paying a real estate commission to the agent, for the period of time spelled out in the listing. Even if the seller is able to sell his own house without the services of the agent, a commission is still owed the agent.
It is this exclusive right to sell that most agents and brokers want you to sign. It is a common practice in the Washington area to engage in the exclusive right to sell, and generally speaking, this is the type of arrangement you will negotiate with the brokerage firm. Multiple Listing (MLS). The listing agent is given the right to circulate the availability of the house to other agents that participate in a computerized service known as a multiple listing organization. Those firms that are involved in the MLS have access to a computer that produces a lengthly list of real estate available for sale by price and by location. The seller's commission remains the same as agreed upon in the original listing. If there are two brokers involved in the sale, they will split the commission equally. Thus, you hear the term "listing agent" and "selling agent."
Both the "listing" and the "selling" agent are the agents of the seller. The seller is paying their commission and they both owe a fiduciary obligation to their master -- the seller. Net Listing. This kind of listing obligates the agent to give the seller a net price for the house, regardless of the actual sales price. Thus, the agent is free to sell the house at any price and is only obligated to give the seller the agreed upon net listing price. Since this type of arrangement is highly susceptible to fraud, many states have made the net listing illegal, and clearly it is not recommended for sellers.
Once you have decided on the form of the agreement, you should discuss what the agent will do by way of marketing strategy. Will they hold the house open on weekends, and if so, how many times a month? Will they prepare brochures or other literature describing the house, and will you have an opportunity to add to and approve that material? While it is generally not recommended that an addendum be added to the listing agreement, the broker should be able to give you a side letter as to what they will and will not do on your behalf.
The question is always raised as to how long the listing should run. Needless to say, brokers want the listing to run as long as possible. Some sellers want to restrict the time so that they can shop around for another brokerage firm if they become dissatisfied with the original listing agent. I recommend that the listing agreement run between 60 and 90 days. If you are satisfied with the brokerage firm, you can always extend the listing agreement.
This is but a very broad overview of the complex laws involving real estate brokers.
Benny L. Kass is a Washington attorney. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed, stamped envelope to Benny L. Kass, Suite 1100, 1050 17th St. NW, Washington, D.C. 20036. Readers may also send questions to him at that address.