Do You "Have" a Listing if You Don't Have a SIGNED Listing Agreement?

By
Real Estate Agent with Coldwell Banker Residential Brokerage - ABR - SRES

My question - Do you "have" a listing if you don't have a SIGNED listing agreement

Several weeks ago a friend approached me to say that her daughter and son-in-law were putting their townhouse on the market and if I had any buyers to please let her know.

I contacted a couple I've been working with and over the weekend they called to say that yes, they would like to see it on Sunday.  I called my friend to make arrangements to get the key (her daughter and son-in-law are now living in Annapolis) and she noted that because the house had not done very well as a For Sale by Owner, they were going with a well known and very successful listing agent in our area.


Fine.  I know this agent and, out of professional courtesy, called to say that I was showing the house that afternoon.  She called back immediately to say that she preferred that I NOT show the house until Wednesday or Thursday because it wasn't 'ready'. 

Fine.  I called my friend back, noted the agent's request and said I would not be showing the house.  At that point my friend (a savvy business woman) practically jumped into the phone and said - she does NOT have a signed listing and will NOT have one until Wednesday or Thursday

Now it's not so fine.  Technically and legally the house was still For Sale By Owner.  My friend gave me the keys and off I went.  Later that night I emailed the son-in-law to say that we had done a one time showing and my clients were willing to offer XXXX dollars.

The next day the soon-to-be listing agent called and raised holy hell because I had 1) gone in after she requested that I wait and 2) spoken directly to "her" client and not to her.  My response was that she did NOT have a (signed) listing agreement and that I was looking out for MY clients. 

On one hand I understand why she asked me to wait.  The listing has to go into the MLS within 24 hrs of being signed and if she had an offer immediately afterward it would make her DOM statistics look great and would add to her already glossy resume . At the same time she misrepresented the situation and her relationship with the owner.  By asking me not to show the house she was denying the owner an opportunity to sell his house on his terms.

So, my questions - do you "have" a listing if you don't have a SIGNED listing agreement? 

Was I out of order?  What would you done?  As a listing agent?  As a buyers agent?

 

P.S. - The follow up to this is that the owner turned down our offer because the listing agent had assured him of a higher price, perhaps even a bidding war following her Open House.  The house is still on the market.

Posted by

Michael Bergin

Your Realtor in Alexandria and Northern Virginia - ABR - SRES - Military Relocation

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Re-Blogged 3 times:

Re-Blogged By Re-Blogged At
  1. Bill Travis 06/25/2010 09:49 AM
  2. Hassan B. Halak 06/26/2010 02:09 AM
  3. Sybil Campbell 06/26/2010 10:29 PM
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Show All Comments
Rainer
96,502
Larry and Marilyn Mennetti
FIVE STAR REAL ESTATE - East Grand Rapids, MI

she had nothing....if the seller wants to pay her for nothing, let them. You did everything correct, no signed contract to list, no listing.....at least here in Michigan. If it isn't written down, in real estate, it never happened.

Jun 25, 2010 04:56 PM #66
Rainmaker
56,773
John Queenan
CDPE, Nicholas H. Fingelly Real Estate - Sandy Hook, CT

Nice scoop Michael. You did nothing wrong and everything right!

 

Jun 25, 2010 05:59 PM #67
Rainmaker
262,130
Michael Bergin
Coldwell Banker Residential Brokerage - ABR - SRES - Alexandria, VA
Northern Virginia Real Estate

Mara, Lawrence, Markita, Darryl, Evelyn, Vickie, Kathleen, Carolyn, Terry, Fernando, Dan, Katherine, Melissa, Ginny, Joe, Michael, Val, Jenna, Nan, Karla, Kathy, Joy, Jeff, Gene, Andy, Bill, Bryant, Amber, Terry, Tom, Morris, Catherine, Lee Ann, Larry, John -

WOW.  Thanks for all the great feed back and support.  I was pretty confident about my position here, as was my broker, but it's always nice to throw it out to the community for discussion.

Michael

Jun 25, 2010 07:03 PM #68
Rainmaker
262,130
Michael Bergin
Coldwell Banker Residential Brokerage - ABR - SRES - Alexandria, VA
Northern Virginia Real Estate

Andy - I appreciate an objective response but I think you've tried to create more out of this situation than needed.  In writing a blog post there is a balance between presenting facts and context and regurgitating every detail.  You have assumed things about which you have no knowledge - like whether or not I had a buyer's contract or the exact details of the conversation - not a good place to go.  Let's just say I had my bases covered.

On the up side, I see that you are new to the RAIN.  Welcome and congratulations for jumping into the fray.

MB

Jun 25, 2010 07:14 PM #69
Rainer
117,198
Beverly of Bev & Bob Meaux
Keller Williams Suburban Realty - West Orange, NJ
Where Buying & Selling Works

She should have gotten an Exclusive Listing signed to protect while the house was getting "ready". You were called by your friend. You did everything right. The agent is just pissted you got it done and she lost a quick sale. I love agents who say they have a house when they don't have paperwork. Don't be fooled...no signed paperwork, no listing representation. The seller could agree with you and shake your hand, then sign with someone else the next hour. Get your papers signed or take a chance.

She took a chance, she lost.

Have a good deal and sleep well.

Jun 25, 2010 09:33 PM #70
Rainmaker
262,130
Michael Bergin
Coldwell Banker Residential Brokerage - ABR - SRES - Alexandria, VA
Northern Virginia Real Estate

To me it's like having a contract on a house.  It doesn't mean it's sold, it just means there is a contract - a lot can happen befoe you go to closiing.  Same with a listing.

MB

Jun 25, 2010 10:24 PM #71
Rainmaker
351,538
Damon Gettier
Damon Gettier & Associates, REALTORS- Roanoke Va Short Sale Expert - Roanoke, VA
Broker/Owner ABRM, GRI, CDPE

First and foremost you did nothing wrong. 

Second, to the agent or two who said to be careful with this one...why?  Nothing was done incorrectly.

Third, for the agent who said that listing agreements can be verbal, not in the State of Virginia.

Jun 25, 2010 11:56 PM #72
Ambassador
1,555,894
Christine Donovan
Donovan Blatt Realty - Costa Mesa, CA
Broker/Attorney 800-610-7253 DRE01267479 - Costa M

I agree with much of what Andy said about trying to obtain the listing.  However, I don't believe the "listing" agent had a listing since nothing was signed.

Jun 26, 2010 12:36 AM #73
Rainmaker
814,171
Marte Cliff
Marte Cliff Copywriting - Priest River, ID
your real estate writer

Seems to me that when the agent said the house wasn't "ready" she really meant that her listing wasn't signed yet. Perhaps it was in the mail.

I think she was afraid you'd sell it before she had a part in it - which you did. But didn't you say they rejected the offer because that agent promised to get them a higher price? That sounds kind of sleazy too. She can't KNOW that she'll get them a higher price. That was just a way to knock you out of her way.

I hope your buyers hang around... and end up with the house eventually!

Jun 26, 2010 03:37 AM #74
Rainmaker
128,113
Mike Henderson
Your complete source for buying HUD homes - Littleton, CO
HUD Home Hub - 303-949-5848

As many have said you have done nothing wrong.

Sorry the sale didn't go through.  I think in addition to everything else said here I would of tried the "Hail Mary" pass at the end of the game.

1)  Since the home is listed as a FSBO and no listing agreement signed then I assume you were negotiating directly with the owners.  I would of put together a net sheet for them.  I have two figures for my on my sheet on where they will net with just my commission.  The other side shows a listing one as well.  To further reinforce the point show them the potential holding costs including.

2)  Suggest to them, since there is no listing agreement signed that they include a clause that The Listing Agent will purchase the home for xxx price within 30 days of the listing.  I'm certain that they will agree because they are certain that they can sell it fast and sell it for more.

I'm also making sure I get my Brokers sign off before I pursue this strategy.  I always try a hail mary when the deal is falling apart and a lot of times it works.

Jun 26, 2010 03:45 AM #75
Rainmaker
237,624
Roger Johnson
CENTURY 21 American Homes - Hickory, NC
Realtor - Hickory NC Real Estate

First, I'm a little surprised that you posted this as a public read and allowed it to be reblogged.  Regardless of whatever we think, as readers, local courts and attorneys may think different.  Public posting of the details may have as many issues as the issue at hand itself.  My opinion.

Second, to me, there's a BIG gray area as to whether it's an ethics violation or not (don't know your state laws, but I see nothing legally wrong, again, my opinion only).  Your only contact, per your post, to the property is a mother-in-law, who may or may not have had legal permission to show the house.  Did you actually have ANY contact with the actual seller prior to entering the home/making an offer?  Clearly, you did know before entering that a) they had spoken with another Realtor, and b) that they intended to list with them.  To me, that could possibly be seen as interfering with a contract, an ethics violation.

Third, if the listing agent recommended to this seller to reject the offer because they could get a "higher price, and possibly a bidding war" if they listed and they didn't, I also see potentially major ethics violations there, not only interfering with a contract (again) but also out and out lying (another ethics violation).  legally...that depends on state's laws.

my thoughts and opinions.

Jun 26, 2010 07:11 AM #76
Rainmaker
1,420,277
Joan Cox
Metro Brokers - House to Home, Inc. - Denver Real Estate - 720-231-6373 - Denver, CO
Denver Real Estate - Selling One Home at a Time

No listing agreement, no listing.   You were perfectly in order by going directly to the seller. The seller may regret that decision, as the first offer is USUALLY your best offer!

Jun 26, 2010 09:19 AM #77
Rainmaker
262,130
Michael Bergin
Coldwell Banker Residential Brokerage - ABR - SRES - Alexandria, VA
Northern Virginia Real Estate

Damon - Agreed on all points.

Jun 26, 2010 09:20 AM #78
Rainmaker
262,130
Michael Bergin
Coldwell Banker Residential Brokerage - ABR - SRES - Alexandria, VA
Northern Virginia Real Estate

Christine - As I noted back to Andy, all my bases were covered.

MB

Jun 26, 2010 09:22 AM #79
Rainmaker
262,130
Michael Bergin
Coldwell Banker Residential Brokerage - ABR - SRES - Alexandria, VA
Northern Virginia Real Estate

Mare - You are right, when she said the house wasn't ready it meant the listing agreement was not signed.

MB

Jun 26, 2010 09:24 AM #80
Rainmaker
262,130
Michael Bergin
Coldwell Banker Residential Brokerage - ABR - SRES - Alexandria, VA
Northern Virginia Real Estate

Mike - I love your Hail Mary approach and am going to keep it in mind.  And yes, my broker was on board the whole way.

MB

Jun 26, 2010 09:26 AM #81
Rainmaker
262,130
Michael Bergin
Coldwell Banker Residential Brokerage - ABR - SRES - Alexandria, VA
Northern Virginia Real Estate

Roger - in retrospect I probably should have tapped the members only button . . . the mother-in-law did have legal permission to show the house (in fact, she was the only one with keys)  . . .  perhaps a tempest in a teapot as far as the courts go . . .

MB

Jun 26, 2010 09:32 AM #82
Rainer
22,639
George Walsh
Keller Williams Realty Premier Properties - Livingston, NJ

Roger (#76) has highlighted several potential problem areas. The owner apparently indcated that they were hiring the listing agent by the indication that the listing document was to be signed by Wednesday or Thursday. It seems the mother was trying to use you to by-pass the owner's intention to hire the listing agent and get a buyer in before the doc's were signed. I would have worked with the other agent knowing that a listing was imminent. It appears you had no contact with the actual owner.

Jun 26, 2010 03:39 PM #83
Rainer
58,642
Eugene Lew
RE/MAX equity group - Happy Valley, OR

That is bad, the seller didn't list with you to begin with... so, has this caused any strain in the relationship? You did the right thing, since you did't really know they were going with another agent until you had the buyer to show. As long as she didn't have a written contract, she had no listing. Chances are, had you made a sale, she would've probably been cut out of it, and you'd have an angry fellow agent, as well as an accusation of taking her client. Not a place you want to be in.

Jun 27, 2010 04:14 AM #84
Rainer
152,778
Matthew Bartlett
Century 21 Masters/Lic. #01353034 - Glendora, CA

Hello Michael! The other Agent can complain all they want. You did the right thing. You were looking out for your clients best interest and that of the Homeowner as well. No listing existed since the Agent did not have anything in writing. Furthermore, the other Agents actions were unethical by mis-representing their relationship with the homeowner.

Jul 24, 2010 12:46 AM #85
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Rainmaker
262,130

Michael Bergin

Northern Virginia Real Estate
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