We signed a contract to purchase a home that was on the market for approximately 35 days in Houston Texas. The contract was signed by us (buyers) and the seller's. We continued with inspection, which, was not favorable, but we really wanted the home and told the agent that we would accept it as is. The seller's are very close to foreclosure, or that is what we have been told from the beginning (executed Aug 5th). A few days after we agreed to take the home as-is, the seller's decided to change there mind. My agent worked frantically to get us to sign the Ernest Money Release and get us the reimbursement checks for the inspection and option fee. This is the house we really wanted and we were very upset about the situation. So, we consulted an attorney who stated that the seller's are bound by the contract and if they decided not to sell they are in "breech of contract". So, we hired her to represent us in the matter. (Attorney found out later there was another deal on the table that was a higher than ours) She sent a letter to our realtor and basically stated that we no longer need her to discuss this with the listing agent and also that we no longer wish her to represent us, since we feel like she did not provide us with pertainent information; such as, the seller's are bound by the contract unless we sign the Ernest $ Release and that another option was to try and settle the situation through mediation instead of hiring an attorney. The seller's changed there mind after being served, and now they are willing to sell, but not pay our attorney's fee. Our agent is holding up the deal, because she does not want to relinquish her rights to the commission. We feel that she should not be paid the commission, since we had to pay for an attorney to tell us what she should have disclosed, if she had our best interest in mind. How can we fire or release buyers agent from the contract? :mad:

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Originally Posted by rluera

since we had to pay for an attorney to tell us what she should have disclosed, if she had our best interest in mind. How can we fire or release buyers agent from the contract? :mad:

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Hello rluera:

Just WHO does the agent represent?? In the immediate quote above you call her a "buyers" agent. But, if you didn't hire her, she's the seller's agent, not yours, and you can't fire her. Truly, her job is to bring a buyer and seller together. If she did that, she's entitled to the commish. If you needed legal advice, a realtor is NOT where you should have gotten it - especially a realtor who represents the other side. Of course, a sellers agent won't "have your best interest in mind".

My advice is close on the house, pay the commish, and then sue. On second thought - you have nothing to sue about!

excon

PS> Maybe I need to be clearer here. Unless a buyer specifically hires an agent to represent HIS interests, ALL realtors represent the seller.

Thanks for the quick response. When I indicate buyers agent (we are the buyers), I mean that she showed us the house and generated and submitted the contract on our behalf, there is another realtor involved that represents the seller's and I know that I can not do anything about his portion of the commission because that is between him and the seller's.

Hello again:

I understand what you are saying. YOU found her. SHE showed you the house. SHE generated and submitted the contract. However, it was NOT ON YOUR BEHALF, because she represents the seller.

ALL, make that ALL realtors represent the seller.

There are realtors out there who represent buyers. When hired, a "buyers" representation agreement is entered into. They're paid by the buyers to find a house and to represent buyers during negotiations. They do NOT split commissions with the selling agent.

If you didn't do that, then the agent represented the seller.

excon

Wow, that is very interesting to know. I never thought of it from that point of view, I always assumed that she was working for us, but in fact, it is the seller's who is paying her. So, with that said, we do not have the right to remove her from the contract unless it is agreed upon by the seller's? Is that right?

A real estate agent is not an attorney and can't/should not be advising you on legalities. You ALWAYS had the option of consulting an attorney, CPA, etc when dealing with real estate transactions.

You should pay your own attorney and close on the deal if it really is the house you want.

Cvillecpm ~ We did hire an attorney at the point that we felt we needed one. Which was when we were asked to signed the Ernest Money Release. I read the Ernest Money Release which indicated: "Do not sign this form if it is not your intention to release all the persons signing this form from all liability under the contract." As well, our original contract indicates,
Attorneys Fees: The prevailing party in any legal proceeding related to this contract is entitled to recover reasonable attorney's fees and all cost of such proceeding incurred by the prevailing party." So doesn't that mean that the seller's should reimburse our attorney's fee,since they are the one's that breeched the contract?

NO - it means that at trial, the court will view who "won" when awarding attorney fees in the judgement... you don't get the fees unless you are awarded them by a court.

If you did not understand what was happening with the release then you should have consulted an attorney and pay the attorney for their advice... the buyer broker is not an attorney... you are confusing a real estate fuctionary with an attorney.

Hello again rluera:

If you're going to buy the house, then there's no breech.

Do you see that word "prevailing"? That means, YES, if you sue, and if you PREVAIL, you should receive attorney's fees. But, you don't think they're going to cut you a check, do you?

If you're not going to buy the house, sue away.

excon

This seems to be a common misconception that kind of defies logic. The sequence of events goes like this:
1) Seller decides to sell home
2) Seller contracts with one or more realtors to list the home
3) Buyer decides to buy a home
4) Buyer approaches realtors to view homes they have listed.

Now I don't quite understand how anyone cannot realize that the realtor repsresents anyone but the seller! Sure a good realtor is going to do their best to match you to a house they have listed. But their loyalty is first and foremost to the sellers who have given them inventory.

Yes there are buyer's who do represent the buyer, but this is rare.

So, what you should be doing is asking your attorney whether you have a case against the realtor for hiding the real facts.

As of today, the listing agent and the agent that we worked with have agreed to contribute $1300 each of there commission towards the legal fees that we incurred. My attorney suggest one of the following option:

1.) That we accept this offer (the total expense's are slightly above this amount, at this point) and close on the house. OR

2.) Let the home go into foreclosure, work a deal with the mortgage company, since we have a les pendens on the property. Then file a law suit against listing agent, the agent that we worked with and the seller's.

Because again, it was openly admitted that by the listing agent's attorney/friend that there was another deal on the table that was higher than ours and that was the reason that they were trying to get us to sign the Ernest Money Release... which was never signed.

What a mess...

PS: You guys have been great and have opened my eyes up to a lot of facts that were not clear. So, thank you very much.

Yes, very seldom do you have a buyers agent, but you can do that, when we bought our home we had a agent that worked for us to help us buy a home. They dealt with all of the other real estate companies and was the only person who showed us homes, But that was our specific contract with her.

Any house that is listed for multi company listings can be shown by any other agnet of any other real estate company. But they will always be representing the seller. They will tell you what is required since they make their money when the house is sold by them. But the agent never represents you unless you specificly hire them, at that point they make no commission from the sale but work for a fee you pay them. ( or they may make a commission if that is in the agreement you have with them)

If the seller signed the contract to sell the house, then they are obligated according to the contract to sell it, or pay you for the damages you occur for this loss.

But if the contact was witten where it has to pass an inspection, and when it failed, this would have voided the contract and your offer to buy as is, would be considered a new offer even if written in with the old offer. Thus the other party would not have to accept.

So the exact wording of the first contract and exactly how the offer was changed to as is, will make the difference if they were allowed to not accept the change in the offer.

Sounds like your attorney is doing a good job. Personally, if you really want the house, I would take the settlement.

Many states have gone to "dual agency"... VA is one and TX appears to be another... the seller pays their broker a commission AT ESCROW which through the listing broker's agreement with various realtors through their MLS system offers a portion of that commission to the Buyer's broker... many buyers don't realize they signed a buyer-broker agreement somewhere in their paperwork and that they may be liable to their broker's commission if the seller's listing broker does not direct escrow to pay it... you guys ARE mixing apples and oranges.

Buyer broker does not owe OP their attorney fee costs since it was not awarded in a court trial/hearing.