I have a listing with offer to be presented tonight at 8:00pm. Owners are husband and wife, divorcing.
Wife has told me she does not want any more showings and does not want to sell and she doesn’t want any offer presentation. She wants to buy out her husband.
He wants to go ahead with the offer presentation and sell to someone else… this all happened after 10:00 pm last night.
But since she has instructed me not to do presentation. Can I cancel the presentation without his approval?
Can she make an offer in the offer presentation? So can I cancel the Offer presentation, and suspend listing based on one person’s instructions?
Then make an APS with her and the husband as the Seller, and her as a buyer (conditional upon financing)? Or do I have to go through the presentation? And she has to bid?
The first thing that needs to take place here is the Severance of the Joint Tenancy. That can be as simple as an email but I would strongly recommend a registered letter.
The wife is not obligated to participate in the purchase of the real estate. She’s buying out the equity, and she can get 95% financing.
The issue at the outset is agency. What’s your role? Who are you representing? The husband, the wife, both of them? All of this affects what you are allowed to do.
It is important also to appreciate that the husband may sell his one half interest as a tenant in common to anyone he chooses. So, with a big enough discount, many people would buy it. The other registered owner (whether that be the husband or a new purchaser) may apply to Court under the Partition Act to have the property sold. Naturally, that’s done at market, and both parties have an option to buy out the other.
No commission, in most cases! So, when taking the listing or facilitating the transfer and sale in some way, you want to cover this off. Also, you don’t necessarily need the whole Separation Agreement negotiated. Just this one point: the house sale. Sell it and have the proceeds held in trust for both parties until they can agree upon a solution. You can protect your commission if you are appointed by the Court as a Real Estate Mediator, if advisable.
Both parties should have independent legal advice in this situation.
Brian Madigan LL.B., Broker