Taking a realtor to court.

[Fleetwoodmac]

QUOTE (RedlineBrett @ Jul 24 2008, 06:55 AM) In Alberta you can protect yourself here by using an `exclusion` clause. This means that if the property sells to someone that you name and put in writing on the listing contract then `such and such` a commission structure will take place.

No, again, you are agreeing to a price to sell your home. This is the number you should expect to pay unless there is a special circumstance that you can identify PRIOR TO LISTING that you wish to address with your agent. The municipality could be asking your agent dozens of questions, want to view the place a number of times, ask for referrals to other people etc. If your agent brings them to the point of offering they have effectively done the job of both agents and deserve both cheques.

It is up to your agent to explain to you how they will be compensated and also how they will be serving your best interests from beginning to end. But you are selling YOUR asset, so as the owner you certainly have the responsibility to make sure you understand everything before signing a listing contract!


Brett, thank you so much for your helpful responses!

Prior to the listing we informed the agent of the Municipality`s interest in the property, wondering if they had some sort of `right of first refusal`. At that point the agent asked for and got a listing agreement with regular commission. The agent said nothing of an exclusion clause. Is that negligence on the agent`s part or is the omission our fault for not being aware of such a clause? We understood what was in the listing agreement but obviously did not understand what was omitted...

Once the agent confirmed the Municipality`s interest, with no right of first refusal, the agent promoted the Municipality`s offer to purchase at a professionally appraised price. If the Municipality uses no agent, must our agent get a dual agency agreement signed by us? Is this omission negligence as well?

Thanks again.

 

[DaveRhydderch]

Terrible to hear all this. There are a lot of bad realtors out there. Unfortunately these cases are so hard to prove, and the real estate councils and boards have so much money to defend themselves with.

The best defense is to ask questions. Realtors who are not good are not able to qualify serious buyers and sellers. As such, they think everyone who wants informaiton is a tire kicker.

To anyone selling, I think you should be upfront with what you are looking for. I think weekly communication on showings and activity in the area is a definite must. Asking what marketing plans will occur (open houses, advertising, etc) is very important, and should be documented.

At the end of the day, the only person who can provide legal advice is a lawyer, If you have questions, consult one of them.

Good luck.

Dave

 

[Dan_Eisenhauer]

I hate reading of people choosing to use the courts to settle disputes... and my son is a personal injuries lawyer.

Having been the victim of a miscarriage of justice, I can assure you that, as one lawyer told me, "The law is not about being right. The law is about the law." No matter how solid a case you think you have, injustice happens. I always point to the OJ Simpson case as proof of that statement. No matter what happened to in that matter, an injustice occurred.

As you have discovered, those who have much deeper pockets than you will gather around the goal posts, and do everything they can to prevent you from scoring. My experience also had the authorities choosing sides, and working, not just on, but for the wrong side. My battle went on for ten years. It took me a long time to get the bitter taste out of my mouth, but I am better off for moving on.

If I had to put numbers to it, I would say that I got about 25% of what I expected. But that 25% cost me ten years of extreme emotional turmoil, a one problem focused life for those years, legal bills exceeding $100,000, and personal bankruptcy. In hind sight, I would do things very differently if they were to happen again. But, when someone else starts a scrap, it is often hard to turm the other cheek.

As Thomas, I think, asked, is this fight worth the time and effort to you? Legal battles are long, expensive, and emotionally draining. Where would you be today if you had given up and walked away four years ago?

You may win. You may not. If you win, you may be awarded costs. But, then you may not. And costs does not mean you will be reimbursed 100% of your actual costs.

My advice is to cut your losses and run in the other direction, as hard a choice as that may be.

 

[RedlineBrett]

QUOTE Brett, thank you so much for your helpful responses!

My pleasure.

QUOTE Prior to the listing we informed the agent of the Municipality`s interest in the property, wondering if they had some sort of `right of first refusal`. At that point the agent asked for and got a listing agreement with regular commission. The agent said nothing of an exclusion clause. Is that negligence on the agent`s part or is the omission our fault for not being aware of such a clause? We understood what was in the listing agreement but obviously did not understand what was omitted...

Did you say "we know the municipality is interested and we want to pay you less if they buy the property" ?

or did you say "we know the municipality is interested".

If I am an agent and I hear the latter it could be interpreted as a `tip` from you to go and chase a deal with these guys. If you make no mention of wanting a reduced commission for the agent under such a scenario I think you will lose out if you go to trial on this basis.


QUOTE Once the agent confirmed the Municipality`s interest, with no right of first refusal, the agent promoted the Municipality`s offer to purchase at a professionally appraised price. If the Municipality uses no agent, must our agent get a dual agency agreement signed by us? Is this omission negligence as well?

Since "are you in dual agency or aren`t you" can be a very grey area our brokerage operates under the assumption that you are in dual agency until you have paperwork to prove otherwise. But that is not the accepted industry standard.

My knowledge relates to Alberta today after many years of new guidelines and much stricter rules regarding dual agency. Four years ago in BC could be a completely different story and I couldn`t tell you the correct paper trail needed for your case.

Although, I suspect the approach your agent would take would be that you agreed to a certain fee to sell your house and they sold it for you. She probably put herself down on the contract as the only agent in the deal with no agent on the buyer side and I would imagine the listing contract would stipulate that she gets the full cheque in that scenario.

 

[mcgregok]

The purchase agreement in ALBERTA seems quite clear. One just has to read it. At the end in BOLD it states if you do not understand the agreement talk to your lawyer. I would think that some folks that call themselves investers and put in offers $25,000 below listed price might be trying to take advantage of someones hardship. With all due respect before you all go and trash the Real Estate Industry investors have to take a hard look at their own ethics.

 

[invst4profit]

QUOTE (mcgregor @ Jul 29 2008, 10:04 PM) The purchase agreement in ALBERTA seems quite clear. One just has to read it. At the end in BOLD it states if you do not understand the agreement talk to your lawyer. I would think that some folks that call themselves investors and put in offers $25,000 below listed price might be trying to take advantage of someones hardship. With all due respect before you all go and trash the Real Estate Industry investors have to take a hard look at their own ethics.


As a retired broker I would expect you to possibly defend the industry but I do not understand your implications that investors are somehow taking advantage of a sellers hardship. I regularly offer 20-30% below asking (as much as $200,000) but have not discovered any way to force the seller to accept.
Someone selling out of necessity is in a position to accept or reject any offer. It is there free choice to accept $25,000 below asking if they so wish or reject and wait for a better offer. If they accept the buyer is doing them a favour by solving there problem.
You can not tell us that as a realtor you have not advised clients on accepting or rejecting low offers.
A asking price is simply that, everything in this life is negotiable.

 

[MikeMcCrae]

Peter Kinch and his team do a great job in trying to educate REIN members on mortgage issues. Unfortunatly the mortgage business is complicated and they can only share the tip of the iceberg. The rules with the lenders change every day and it is a full time job keeping up. As Peter stated above pre approvals AREN`T. The deal can not be done until all factors are considered, and even then things can go wrong.

As mortgage people we try our best to do the best we can for our clients but we are always shooting at a moving target.

Build a relationship with your broker, make him/her understand what your plans are and make sure he/she is brutally honest with you about how things are proceeding with your file and EXACTLY what the pre approval means. So often problems arise because of miss comunication on both parties part and that is when problems arise.

 

[margaretcowan]

Hi

Years ago I took a realtor to small claims court in BC in more clear cut case of negligence in handling a sale of a house I had tenants in and the new owner wanted to demolish the house. The short story is the new owner and I waited six months for the tenant with extortionist tendencies to vacate and I lost about $10,000 in interest on the money I would have had earlier from the sale.

It took about 6 months for me to get to Small Claims court.

The day before the Small Claims hearing the realty company manager called me with a low settlement offer. I knew my facts and that i would most likely win so I said no thanks.

All alone on the witness stand, defending myself, I won against a team of six men---lawyers and managers from a big realty company.

How? I got good advice from a knowledgeable lawyer who said I was right and I would win if I stated my case the way he told me. I was used to public speaking and felt confident when I got on the stand. I won.

My advice is have your facts straight and concise, act in a professional, confident way and be able to speak well about your case.

Good luck!
Margaret

 

[FayWong]

QUOTE (JRL @ Jul 23 2008, 08:42 PM) A suggestion: be slow to anger, and quick to forgive ..Humble yourself and turn the other cheek .. i.e. consider dropping the legal battle and your life will be easier and more productive .. and you will make up the 25K (or ten to 100 fold that) in no time elsewhere ..

I don`t know if I agree with that.

It`s responses like these, which are probably what the grand majority of people do (feel bad about it for a little bit, then forget it), which reinforce the behaviours of the wrongdoer by not really having any consequences bestowed upon him/her.

I know that of the times where I`ve been seriously wronged by another person, and when I`ve made a big stink about it, they`ve taken notice, they`ve acknowledged their wrongdoings, and they`ve been taught a lesson that probably won`t soon be forgotten. An old saying can be applied here - the squeaky wheel gets the grease. I really wish I would`ve done more to this realtor last summer, but it was just too stressful and time-consuming a situation for me to really get anything done.

Turning the other cheek is exactly what the wrongdoer wants; I`d much rather make them sweat a little.Until a year ago I would have agreed with you whole heartedly. I have since discovered that the law of attraction works both ways. If you spend too much time and emotion thinking about a wrong, you will attract more of the same.

Yesterday I was reading Napoleon Hills "Law of Success", the chapter on "The Golden Rule"; in it he quotes Wu Ming Fu "the effects of our actions my be postponed but they are never lost. There is an inevitable reward for good deeds and an INESCAPABLE PUNISHMENT FOR BAD. Meditate upon this truth, and seek always to earn good wages from destiny."

Mr. Hill himself says "You cannot indulge in an act toward another person without having first created the nature of that act in your own thought, and you cannot release a thought without planting the sum and substance and nature of it in your own subconscious mind, where it becomes an integral part of your own character, modifying it in exact conformity with the nature of the act or thought.

Grasp this simple principle and you will understand why you cannot afford to hate or envy another person. You will also understand why you cannot afford to strike back, in kind, at those who do you an injustice. Likewise you will understand the injunction "return good for evil`" My take on this is do what you believe to be right, always, every day and don`t worry about those who do wrong (except what is needed to protect yourself and others).

They will attract to themselves the same type of person as they are. Others will behave towards them in the same dishonest way they behave. They will over time punish themselves. Concentrate on the good things and good people in your life and business. Forgiveness benefits you as much as the one forgiven.

 

[GarthChapman]

QUOTE (FayWong @ Aug 7 2008, 08:11 AM) Until a year ago I would have agreed with you whole heartedly. I have since discovered that the law of attraction works both ways. If you spend too much time and emotion thinking about a wrong, you will attract more of the same. Yesterday I was reading Napoleon Hills "Law of Success", the chapter on "The Golden Rule"; in it he quotes Wu Ming Fu "the effects of our actions my be postponed but they are never lost. There is an inevitable reward for good deeds and an INESCAPABLE PUNISHMENT FOR BAD. Meditate upon this truth, and seek always to earn good wages from destiny."
Mr. Hill himself says "You cannot indulge in an act toward another person without having first created the nature of that act in your own thought, and you cannot release a thought without planting the sum and substance and nature of it in your own subconscious mind, where it becomes an integral part of your own character, modifying it in exact conformity with the nature of the act or thought. Grasp this simple principle and you will understand why you cannot afford to hate or envy another person. You will also understand why you cannot afford to strike back, in kind, at those who do you an injustice. Likewise you will understand the injunction "return good for evil`"
My take on this is do what you believe to be right, always, every day and don`t worry about those who do wrong (except what is needed to protect yourself and others). They will attract to themselves the same type of person as they are. Others will behave towards them in the same dishonest way they behave. They will over time punish themselves. Concentrate on the good things and good people in your life and business. Forgiveness benefits you as much as the one forgiven.


Fay, that is wonderful advice! Thank you.

 

[CalgaryExpert]

Thomas.........I was just reading this thread and came across your posting. You do give wonderful advice. I once was advised to walk away from a business which I had put in over 100K.....It was the best decision I have ever made.........however its taken over 5 years to rebuild my life so it’s not easy and to obtain financing is almost next to impossible. When I read about people getting ripped off I discover a person has not done his Due Diligence, just one of the aspects Don Campbell mentions frequently.



QUOTE (thomasbeyer2000 @ Jul 23 2008, 06:22 PM) don`t let "revenge" or the feeling "I have been screwed .. I`ll get the *******" guide your life !

Much time and money .. and even more positive opportunities are wasted in pursuing "the bad guy" ..

yes, many crooks out there .. not only in the real estate business but also in insurance, car business, contracting, law firms, stock market .. the list goes on and on ..

A suggestion: be slow to anger, and quick to forgive ..

Humble yourself and turn the other cheek .. i.e. consider dropping the legal battle and your life will be easier and more productive .. and you will make up the 25K (or ten to 100 fold that) in no time elsewhere ..