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Ethics question - FSBO offer

Posted by jen18e (My Page) on
Sun, Mar 20, 11 at 14:54

I have an odd question. About two weeks ago we listed our home FSBO with a flat fee MLS site. We had interviewed several agents, but were left unimpressed with them for a number of reasons. One thing we heard over and over was how "terrible" the market was.

Well, we've had a very different reaction. Despite the slow? market, and despite listing our home about 15% higher than any of the realtors had suggested, we've had a bunch of interest. It is still the lowest priced house of its size and features in the area by a good margin. We are offering the normal selling commission, and most of the visits have come through agents.

Yesterday, we got an offer. A couple showed up at the door at 2 pm, out of the blue, and asked to see the house. They came back with a written offer last night. Here is where it gets strange -

This couple had an appointment to see the house on Thursday, with a realtor from another town. The realtor had called us up and urged us to rush someone home so we could meet them at Noon. They never showed up.

The buyers tell us that the realtor was trying hard to talk them out of looking at our home, that she had heard bad things about it, it was not a great area, etc. Finally, she told them that we had "told her we could not make the appointment", so she had shown them some other homes they weren't all that interested in.

Then they told us since they are not using her as their buyer's agent, since she did not show them the house, we should consider their offer as "just passing along the commission savings on to them" in order to get the deal done. This is 3%, by the way.

The question I have is this - since they were using an agent to find the house, and to contact us initially, aren't we still ethically obligated to pay her if the sale goes through? I'm not asking for legal advice, we'll get that from our lawyer this week when he looks at this contract. But I'm wondering, what is the honest way to deal with this? On one hand, the buyers might have simply told us this in order to try and save themselves some money, we have no way of knowing what the agent really told them.

On the other hand, if they really did have to come out on their own, we might be worrying about compensating someone who tried to NOT sell our home?


Follow-Up Postings:

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RE: Ethics question - FSBO offer

The question I have is this - since they were using an agent to find the house, and to contact us initially, aren't we still ethically obligated to pay her if the sale goes through?

I work in the RE business, and I would say no. The buyers are the ones who have any kind of obligation to their agent. Not to mention the fact that the agent lied to them about being able to make an appointment with you.


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RE: Ethics question - FSBO offer

"Yesterday, we got an offer. A couple showed up at the door at 2 pm, out of the blue, and asked to see the house. They came back with a written offer last night. Here is where it gets strange -

This couple had an appointment to see the house on Thursday, with a realtor from another town. The realtor had called us up and urged us to rush someone home so we could meet them at Noon. They never showed up.

The buyers tell us that the realtor was trying hard to talk them out of looking at our home, that she had heard bad things about it, it was not a great area, etc. Finally, she told them that we had "told her we could not make the appointment", so she had shown them some other homes they weren't all that interested in."

How nice of this agent to make you run home for an non-existent appointment and then lie to her clients (and bash your house) to both parties detriment....

I would stop listening to the agent and talk to the buyer's directly. The agent probably has other houses she is trying to steer her buyer's to, or, she wants them to only buy from agent listed seller's.

It is easier for an agent to work with another agent than it is to piss around with a cranky seller. Both agents have an incentive to get the sale since neither of them gets paid until the deal closes.

As for a commission, that is her buyer's responsibility, not yours. You already paid for your flat fee listing and lawyer. Isn't that why you went FSBO in the first place?

If you run into a helpful buyer's agent then give them 2%. Just don't let them try to get you to sign some dual agency disclosure like my seller's agent did even though I was using a lawyer for my house purchase last month.


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RE: Ethics question - FSBO offer

Having just been involved in a big ole stink where a seller believed every word that a "buyer" told her, I'd take the buyer's claims with a grain of salt, maybe check with the Realtor.

The whole story sounds incredible.


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RE: Ethics question - FSBO offer

You owe that agent nothing, ethically or legally. And neither do your buyers.


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RE: Ethics question - FSBO offer

"You owe that agent nothing, ethically or legally. And neither do your buyers."

What did the buyer agency agreement say? Who "found" the buyer about the house, the agent or the buyer? Why did the buyer not show up for the appointment? Who initiated the chain of events for the buyer to know that the house was on the market and make an offer?
Something smells rotten here.


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RE: Ethics question - FSBO offer

I'm not an agent nor a lawyer, but I'd interpret this as the buyers at least informally terminating their agreement with their buyers agent before they visited your home. In that case, the buyers agent is due nothing.

If the buyers are lying about this all to try to save commision, I would think that is their ethical problem not yours.

Will be interesting to hear what the lawyer says.


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RE: Ethics question - FSBO offer

Do buyers' agent agreements even exist? I've never heard of buyers paying commissions to agents who show them homes. The sellers pay the commission if the house was shown by an agent. I've never signed any kind of agreement with agents who've shown us houses.


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RE: Ethics question - FSBO offer

I assume the offer was decent? If so, accept it.

The agents are paid from the total price of the house. The agent in question has not stepped foot in your house; although they technically had an appointment they did not keep. The agent can eventually find out that they bought your house & depending on if they signed an agreement with him; yes a commission may be owed depending on how the contract is worded. Once the sale is final; if he has not stepped into the picture by then; he could go after the buyers for his commission if I remember correctly.

Do a search on the forum; this question has come up before when the forum was busier.

Good luck with your offer. For what it's worth; your 1st offer is usually your best.


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RE: Ethics question - FSBO offer

Do buyers' agent agreements even exist?

Yes, they do. And yes, the buyer's agent will usually receive commission from the seller via their agreement with cooperating brokers on MLS, in which case the buyer will probably not owe the agent an additional commission, unless the commission is less than the agreed upon amount/percentage. Buyer's agent agreements also spell out how the agent will be compensated in the event that the buyer purchases a FSBO.


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RE: Ethics question - FSBO offer

Thanks for the info, terriks. I'll be sure never to sign a buyer's agent agreement. :-)


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RE: Ethics question - FSBO offer

I can almost guarantee here is what happened...
1.Buyer "hired" agent to represent them in a deal.
2.Agent found the home in MLS, and passed it onto the buyers. Buyers drove out for a look and noticed the FSBO sign.
3.As with most FSBO buyers, they saw dollar signs, and decided to ditch the agent, and ask you to hand over your equity to them!

First, you sell FSBO to save money, not to give it to a buyer just because they ask for it. Second, if the agent is smart and had the buyers sign a Buyers Agency Agreement, then the agent will come after the buyers for the commission. You are in the clear. But do not hand over your hard earned equity to these buyers.


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RE: Ethics question - FSBO offer

But do not hand over your hard earned equity to these buyers.

Totally agree with this, and I agree with the rest of nc's post about what probably happened. You may want to be careful with these buyers if this is the case, because buyers who are willing to screw over their agent won't hesitate to behave similarly if you accept their offer. I also stand by my statement that the OP has no obligation to the agent.


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RE: Ethics question - FSBO offer

The only thought I have with nc's scenario is that, if the agent found the home, why didn't she show it? I'm thinking--based on the OP's description--that the buyers saw it and asked her to show it to them, and she didn't want to. So, maybe they're not really screwing over their agent. The mystery continues...


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RE: Ethics question - FSBO offer

According to the OP; the agent did set up the showing; so in that case the buyer would have changed their mind when looking at houses saying they didn't want to see it for what ever reason thinking if the agent didn't take them to it; they can use the commission as leverage with their offer like they did.

Anyway; as I said; if the offer is good; I would take it. Who knows if they will get another offer in this market? My neighbor has been on the market for a few months; he finally got an offer. I don't know how much lower then his newest reduced price they offered. He ended up taking it off of the market while they work their deal which is something I wouldn't do until they've had their inspection & decided what they want fixed. This is the prime month for buyers where I am; if this deal falls through he may not get another offer.


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RE: Ethics question - FSBO offer

You might try calling the buyer's agent, playing dumb, and asking her what happened to the showing. That would get you "the other side of the story" and you'd likely be better able to judge whether the buyer's tale is true or not.


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RE: Ethics question - FSBO offer

What ncrealestateguy said makes sense to me. I would call that agent and ask, "Whatever happened to you that day?"


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RE: Ethics question - FSBO offer

jboling... there is just no reason that the agent would not show the property to these ready, able and willing buyers. After all, the seller is offering a decent commission. If us agents are told by our clients that they really like a particular home, we have all the motive to show it to them.
I also would call the agent to get "the other side of the story"
I could be wrong here, but I have seen this scenario before, and know what type of people these are.


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RE: Ethics question - FSBO offer

"buyers at least informally terminating their agreement with their buyers agent before they visited your home. In that case, the buyers agent is due nothing."

A buyer's representation agreement is a contract;
it cannot be unilaterally terminated "informally" or otherwise.

& as ncreguy says, there's no reason for the agent to have set an appointment & gone MIA;
I'd wonder if the buyers called the agent & said they'd run into the seller & seen the house & didn't like it & so, dear agent, you needn't call the seller to cancel.


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RE: Ethics question - FSBO offer

There are many agents that don't like FSBO because it means they may have to do extra work. The OP may never find the real story out.


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RE: Ethics question - FSBO offer

Was the house listed 15% above the market in your neighborhood, based on the comps the agents showed you?
Are these cash buyers who don't want an appraisal?
Regardless what you do, reduce it by 3% or not, if it requires an appraisal, it might not come in at contract price. Just a thought.


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RE: Ethics question - FSBO offer

Well; we may never know the answer to any of our questions. The OP hasn't been back since making the post


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RE: Ethics question - FSBO offer

Sorry to keep you in suspense, but I am still waiting to hear from our lawyer, should be tomorrow.

As far as the appraisal goes, we think we are in good shape. The realtors who actually showed us comps both used the same two houses. One is almost identical to ours, on our street and sold in November for considerably more. The other is on the next block, slightly larger than ours - about 14 square feet or something. It sold for a lot less. However, the house was bought for cash because it would not finance as it was wrecked inside.

It sold in January and the buyers still have not moved in. They have replaced damaged sheetrock, plumbing, and the home still has not passed code inspection as of last week. The realtors who used comps factored this house into their calculations, skewing the figure low.

I explained this to them, and asked why my home, which has been properly maintained and prepared was being compared to a "fix up", and basically was told because it is there.
Both admitted this area is very hard to comp.

Two other realtors used the low figure on Zillow to estimate the house, one did so without even coming to see it.

Another realtor said she used comps, but would not come out to see us because we are too far from town for her, and it is "too hard" to sell property out here.

Another realtor came out but forgot to bring the comps she used with her.

Which is how we ended up FSBO, when we really hadn't planned on it. Hopefully, all this turns out to be a blessing in disguise.


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RE: Ethics question - FSBO offer

Did you accept the offer?


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RE: Ethics question - FSBO offer

I can see why a realtor would want to steer someone away from a FSBO. Yes, they can still earn their 3%, but they are also helping to "cheat" a sellers agent out of a sale. Even though realtors compete against each other, they also stick up for one another and protect each other. FSBOs are a real threat to realtors, and they would be glad to see them eliminated. It is totally believable to me that a realtor would try to sabotage a FSBO. It could also be possible that the buyers really wanted to see the house, and they could see through the realtors attempts at sabotage, and thats why they showed up on their own. If the realtor truly did tell all these lies and try to sabotage the sale, I would be much more angry about that than I would worry about whether or not I owe them a commission. The buyers asking to get a 3% kickback is a bit greedy, but not unexpected, and may have nothing to do with the realtor now being out of the picture. Either way, the seller owes the realtor absolutely nothing. Especially after the realtor didnt show the house. So you made an appointment and then didnt show up? Who cares? The realtor still didnt do anything to deserve any commission. The odds are very high that these buyers found this house on their own.


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RE: Ethics question - FSBO offer

Jen; thanks for coming back & giving an update. What ends up happening is people will post; they don't check the box to have replies sent to them so they don't know people are replying & forget to come back. I've been around long enough that when I see a lot of replies with the Op not posting that some never come back; I hate seeing people waste time posting advice in that case.

Let us know how it works out.


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