Question:
The first agent had a listing. The contract expired or was cancelled.
One Buyer’s agent had a strong interest from their client in the property. Just after the property came down off MLS, this Agent called to say that they “had an Offer”.
In the meantime, the Seller signs a new Listing with another agent (Agent #2) but that Listing although signed does not commence for several days.
There’s a 120 holdover clause in Agent #1’s contract.
Is the first Agent entitled to anything? The Seller is confused as he doesn’t want to pay two commissions.
Answer:
The first contract expired. The holdover clause will prevent the Seller from doing an “end run”, but that’s it.
The Buyer wants to present an Offer. The Seller can select Agent#1, and the Offer will go through Agent#1and Agent#1 will be entitled to a commission, or, the Seller can delay a couple of days, and the Buyer’s Offer goes through the new Agent #2.
The key here is the “presentation” of the Offer. If the Seller delays, then it’s too late for Agent#1.
Basically, it comes down to rewarding Agent#1for work “done” or rewarding the new Agent for some other reason.
The holdover clause will provide Agent#1 with the difference in the commission but only if that matter was “properly” explained.
Can Agent#1 prove that they explained it? Most agents can’t. They don’t even touch on this subject at all.
One other issue here, if the Buyer’s agent was astute, they could approach the Seller directly and present an Offer. In effect, they would double end it. The first Listing is finished and the second listing hasn’t started.
Brian Madigan LL.B., Broker