Q We listed our house with a real estate agent a few months ago. The agent holds an exclusive right to sell and the listing agreement will expire soon. We have not seen any signs of sales activities on the part of the agent and since this is supposed to be a "hot market," we are becoming concerned and 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 real estate brokerage firm?

A: Generally speaking, there are three kinds of real estate listing agreements:

* Open listing. Under this arrangement, the owner of property gives a real estate broker or agent 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 owed only if the broker is the "procuring cause" of the actual sale. That means that the broker has brought a ready, willing and able purchaser to the seller.

Most real estate brokers are unwilling to take an open listing because they may do a lot of work--and spend a lot of money on advertising--and wind up with no 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 house through his or her own effort. 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 prefer and use. It gives the broker the exclusive right to sell your property, and even if you sell it yourself while the agreement is in effect--or some other agent finds you a buyer--you will be obligated to pay a commission to the broker. The amount of the commission in such a case is always spelled out in a legal document called a "listing agreement."

Thus, in most circumstances under an exclusive right to sell listing, even if you, the homeowner, 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, there have been some legal court cases that have not been willing to interpret the exclusive right to sell that broadly. In one case, for example, the court analyzed a listing agreement that gave the brokerage firm the exclusive right to sell.

According to the Court of Appeals, since the listing agreement did not include a provision dealing with the question of the owners' right to sell through their own efforts, the court ruled that the mere phrase "exclusive right to sell" was ambiguous. Therefore, when the landowners sold the house themselves during the term of an exclusive right to sell listing agreement, the homeowner owed no commission to the real estate firm.

According to the Court of Appeals: "Though the contract thus explicitly made it clear that no other real estate agent could be engaged, it was silent as to the question of whether the owners relinquished as well their right to sell their property through their own efforts."

Thus, if your listing agreement does not contain language saying you will owe a commission even if you sell the house yourself, it can be argued that you have the right to sell the house yourself and owe no commission.

However, I would not rely exclusively on this court case. You do not want to wait for a second court opinion or pay the legal fees involved with such a case.

You might, however, consider terminating the agency relationship. The real estate broker is your agent. Like most agency relationships, if the principal is dissatisfied with the services of the agent, the agency relationship can be terminated. If there is such an exclusive right to sell, it can be terminated by the seller upon proper notice to the broker--but only before the broker has spent any time or money involved on the listing.

I suggest that you sit down with your broker and discuss the entire matter. The broker may not be aware of your concerns, and it may also be that the broker has, in fact, spent time and effort trying to sell your house. If you are still dissatisfied, and if the broker has not put in the time, feel free to cancel the listing by giving the broker written notice.

When sellers enter into real estate listing agreements, they should recognize that these are legal and binding obligations. If there is any uncertainty as to the meaning of the language, discuss your concerns with the real estate agent before you sign that agreement.

Additionally, if there are individuals who have previously expressed an interest in your house, exclude them from the coverage of the listing agreement so that there will be no question in the future that if any of those individuals buy your house, you will not owe a commission to the agent.

Finally, here are two tips for language that should go into every listing agreement:

Add language that no commission is earned until and unless settlement takes place. Unfortunately, there are too many cases where a buyer who has signed a real estate contract gets cold feet (often referred to as "buyer's remorse") and wants out of the contract. Under such circumstances, with the language I have suggested, your broker would not be entitled to any commission.

Additionally, I suggest that you limit the length of your listing agreement to no more than three months. You can always extend the listing for another period of time. However, if at the end of the three months you are dissatisfied with the broker, you will have no problem terminating that relationship and looking for someone else.

Kass is a Washington lawyer. 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.