Recently I was contacted by home sellers who wanted to talk to me about their home sale – they were in escrow with another agent and were very unhappy. There were some legal issues and the agent was non-responsive and not representing them to the best of her ability. They had no idea that they may be able to fire the agent, so I thought it was a good idea to again share this tidbit with all the sellers and potential sellers out there – and also for buyers.
If you are a seller who is unhappy with your real estate agent, you may have the right to cancel your contract in the state of California if the agent is not adequately representing you. There are a few things to keep in mind though, as you make your decision:
1. Contractual Breach or Valid reason – If your agent is not representing you to the best of his/her abilities, your first step should be to contact the broker. You need to explain your concerns and desire to cease working with the agent. If you cannot agree to a mutual cancellation, you may need to prove that the agent is not performing her/his contractual duties or doing their due diligence (does not call you, does not explain paperwork or provide details on the sales process, etc.) or provide some other valid reason to cancel. Brokers may want to try to resolve the issue first, or may want to personally step in to make sure you are well cared for during the remaining time the contract is in effect. Check over your contract to make sure you understand specific duties and can show they are not being done.
2. Mutual consent – this is an easy way to cancel a contract with a broker/agent – say your circumstances have changed and you no longer will be moving – most brokers will allow a cancellation at that point (no one wants to market a home that will not sell).
3. Legal termination – if you have tried everything above and the broker/agent will not consent to a cancellation, you may need to seek a legal remedy to cancel your contract. Check your contract to see if there is a legal remedy specified therein, like mediation and arbitration. If not, seek the guidance of a real estate attorney.
There are some other things you need to keep in mind when considering canceling a contract with your broker/agent:
1. Agent may be entitled to commission for prior showings: If a buyer came along while the contract was in place and they make an offer after it has been canceled, the agent may have a right to a commission. You need to check the language on the listing agreement and see how long this period will be in effect. On the California Residential Listing Agreement this is a fill in the blank – most agents will write 30 days but make sure. This can apply to prospective buyers to whom the agent showed the property, or those who saw it with another agent.
2. Costs and Fees – Check your contract to make sure that you will not be liable for any costs and fees to the agent if you cancel the contract. Brokers or their agents would have to specify such in the agreement and most do not, but make sure you know if you will be liable for any.
3. Marketing materials will not convey. Any marketing materials procured by the broker – photographs, flyers, advertising, etc., are the property of the broker. If you start all over with another broker/agent you will have to start all over with marketing as well (unless the prior agent agrees to let you use their materials, but that is doubtful if you are firing them.
My best advice is to make sure when you are entering into these contracts that you have a way out if you are not happy with the service provided. I tell ALL my potential clients that they can fire me at any time, so long as they first communicate with me any unhappiness so I can try to rectify it. But I would never force a client to remain under contract terms if they are unhappy – I don’t want anyone to be unhappy because that not only makes me feel bad but also affects my business.