Listing Expiration and the Holdover Commission Clause

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Question:

I acted for a Buyer who submitted an Offer on a property. The Seller refused to sell, and it’s now off the market.

The Seller absolutely refuses to deal with their original Listing agent, is upset with all agents and doesn’t want to be represented by me either.

The Buyer and the Seller are now otherwise agreeable upon price and terms

If I represent my client in this transaction, can the listing agent ever come back to me for me or my brokerage helping to facilitate this deal?

Answer:

The Seller might not want to sign a new Listing, which is fine, but they will have to sign a “Commission Agreement For a Property Not Listed” in order to get around the “top up” provisions in the holdover clause. The Seller need not necessarily be a customer. If you choose to provide “advice”, then they become a client. That should be avoided. Produce the correct documentation and recommend that they see their lawyer.

Let’s assume the old Listing was 5%. If you don’t have this document signed then the Seller will owe the 5% under the holdover clause.

The Seller will also owe the “top up” commission. If the old commission was 5% and yours was 3%, then the Seller would still owe an additional 2%.However, if your commission were 5%, then the Seller would owe nothing to the original Listing Agent.

You could rebate and remit the extra commission entitlement to your client the Buyer. Now, this commission bumps up the price and can be financed through a Lender.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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