Dear Real Estate Adviser,
I did a for-sale-by-owner sale and now an agent has threatened to sue for loss of commission. Here’s what happened: The buyers found me on their own, and a few hours after their visit, an agent called and said he’d found an interested party for me if I’d just sign a dual-agency agreement. I declined. He then informed me that it was the same couple from earlier in the day and sent an offer with a 2.5 percent commission for himself, and I replied that was too high. He countered with 2 percent and I said no again, then asked myself why I was dealing with this guy at all. The buyers informed me they had no agreement with him either, so they told the agent to take a hike. I sold the place, and then the agent and his lawyer wrote me, threatening to sue and put a lien on my house, saying I owed commission. The agent claims he introduced the buyer to me — an outright lie. Who prevails, oh wise one?
— Brian W.
You should prevail simply because you’re not legally obligated to pay a commission unless you signed an agreement with the agent to do so. Ultimately, that’s what the courts would look at. That doesn’t mean some yahoo can’t sue you groundlessly, perhaps claiming you had a verbal agreement, which is next to useless in real estate law.
The only mistake you made was briefly negotiating with this person. Apparently, you did so only because the agent duped you into believing he represented the other party! The enterprising fella likely saw this as an opening to try to scam money out of you. (You know the saying: “Give ’em 2.5 cm and they’ll take 1.6 km.”)
You’re probably wondering how this guy knew about the buyers’ visit to your house in the first place. I am, too. For all we know, this “agent” might make a habit of going to FSBO open houses (or sending someone) to key on conspicuously interested buyers, then try to insinuate himself into deals. His attorney might be party to such fishing expeditions and be quite adept at bullying people into surrendering something just to avoid a lawsuit, all the time knowing if such a suit were really filed, he’d be laughed out of court. All this is conjecture, mind you.
But if that’s the agent’s game, then his practice is fraudulent. If you continue to receive threats, consider filing complaints to any or all of the following entities, which can be found online: your state’s real estate commission, your state’s attorney general office and your local Realtor association (although they’re not an enforcement agency). For good measure, also hit up the local Better Business Bureau, Angie’s List and similar business performance review sites to warn others. It wouldn’t hurt to check if this guy has a criminal record.
If you’re really feeling feisty, tell the agent immediately that his actions make you suspicious that he and possibly his attorney are involved in a criminal activity, then provide him with a list of all those organizations you’re going to report him to. My guess is you’ll never hear from the agent or attorney again. If he does file a lien, which I doubt, you’ll need to research the legal requirements to remove it in your county or state — probably with aid of counsel.
Unfortunately for the honest majority of hardworking and ethical real estate agents out there, these types of scurrilous operators give the profession a black eye and make people apprehensive about hiring needed representation.
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