Real Estate Agents: What is and is not written in the contract

Real Estate Agents: What is and is not written in the contract

Flipper/Rehabber · CO (colorado) · Member since 2019 · 73 posts · 30 votes

Hi REALTORS,

This is a question about a real estate transaction in Colorado:

While most of my conversations usually surround real estate investment strategies, this time I have a question in regard to purchasing our next primary residence.... a great time to do it with super low interest rates.

We are purchasing the property without a buyers agent. We knew that there were risks with this approach, and one concern has subsequently materialized, even if it is somewhat insignificant: The seller agreed to provide an interior decorating service as a part of the transaction. This service was advertised in the pamphlet for the property, and it was also discussed as a part of the transaction in early negotiations via email with the sellers agent. However, the service was ultimately not written up in the contract, and therefore the seller’s agent - who is now serving in the role of transaction broker, which we agreed to - has cited that because the service was not written up in the contract, the sellers are no longer liable to provide it.

No, this is not something that we would pursue any further legally, and the service is rather insignificant. But we do feel that a bait and switch has taken place, and that the selling agent, who I understand when she acts as a transaction broker should no longer be solely representing the sellers, omitted this detail in the contract, and we did not notice the omission at the time of signing. Argus situation does not strike us as a good faith effort. Really, it’s just a bummer. But I wonder if you might have some thoughts to share.

Thanks, and don’t forget to wash your hands ;-)

Alan

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Russell BrazilBusiness Member
Moderator
Real Estate Agent · Washington, D.C. · Member since 2012 · 17k+ posts · 30k+ votes
6y

You chose not to have an agent. If you dont have the experience to know fully what you are doing, you should hire an agent. There are literally hundreds and hundreds of different details that can make up an offer. 

There is nothing wrong with not wanting to use one, but when something goes sideways, you got to look in the mirror for who is responsible. 

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  • Russell BrazilBusiness Member
    Moderator
    Real Estate Agent · Washington, D.C. · Member since 2012 · 17k+ posts · 30k+ votes
    6y

    You chose not to have an agent. If you dont have the experience to know fully what you are doing, you should hire an agent. There are literally hundreds and hundreds of different details that can make up an offer. 

    There is nothing wrong with not wanting to use one, but when something goes sideways, you got to look in the mirror for who is responsible. 

  • Real Estate Broker · Bellevue, WA · Member since 2017 · 172 posts · 107 votes
    6y

    Hi @Alan Mills,

    I'm sorry to hear that your transaction is not as an enjoyable as it should be.

    First the disclaimer: I'm not an attorney, so don't take the following as legal advice.  

    Items that aren't tangible to the home or affixed are always very difficult to negotiate as part of a Real Estate contract and as such, are usually left out of the contract in practice. Including them can become a slippery slope for holding up transactions because of people's dissatisfaction, which is hard to quantify. We try and keep things as black and white as possible for this reason.  Ultimately what's agreed to on paper is what's most likely to hold up in a court proceeding or mediation.

    If it was advertised as part of the listing, one would expect the Seller to stay true to their word regardless of what's written in the contract but unfortunately that's getting rarer now-a-days.  The Real Estate Agent could be somewhat to blame and could have done it intentionally, but my guess would be that it was an oversight.  When we act as a "dual agent" (as it's called here in WA) or a "transaction broker" as you put it, we have certain responsibilities to both parties that revolve around ethics, fiduciary responsibility, disclosure, etc.  For some brokers, they should never act as a dual agent, and if I'm not mistaken, in some states it's illegal (but don't quote me on that).

    Do you have some grounds to argue it should be done, absolutely, but that recourse would come after closing and likely through some form of legal action, which probably isn't worth it.  Outside of bringing it up with both parties (agent & seller), there isn't a whole lot you can do at this point.  Obviously I don't know the ins and outs of your contract, so take what I'm saying with a grain of salt.

    Not that this really bares mentioning at this point, but always hire a good broker to represent you.  I know that may be a little biased being that I am a broker, but having someone acting on your behalf as a fiduciary can very much limit things like this from happening.  Brokers/agents who do a lot of deals each year have been through and seen a lot.  I've closed millions of dollars in transactions and even I'm surprised by some of the things people try or neglect on behalf of their own clients.  On the buy side, an agent doesn't cost you anything (99% of the time), as they're paid ultimately by the Seller.

    I apologize for the book of a response, but I hope this helps guide you in a direction that makes this misfortune sting a little less.  I would just have a conversation with the broker and see if they or the Seller are willing to make things right somehow.

    Best of luck!

  • Flipper/Rehabber · CO (colorado) · Member since 2019 · 73 posts · 30 votes
    6y

    @Jake Alger, thanks very much for your thoughts. Please see my private message to you.

  • Flipper/Rehabber · CO (colorado) · Member since 2019 · 73 posts · 30 votes
    6y

    @Russell Brazil Wow. Thanks for so gracefully schooling me on this issue. I sure got what I had coming to me, didn’t I? I think I’ll be just fine with the 3% in buyers agent commission that I negotiated down in exchange for the loss of $200 in paint and time that it will take me to paint the room myself. I would suggest learning from a respectful professional’s approach to their craft when responding to a post, such as @Jake Alger’s post above, than trolling through posts to only inform people that they got what they deserved if they didn’t use a buyers agent. I’ve seen you do this to others before. Isn’t it interesting how I remembered you for this very issue? Premium member? I guess anybody can buy that status.

    Because I thought there might be some realtors who might have some constructive thoughts for me as to how to move forward, I reached out to the BP Realtor community. I made a small mistake and I learned from it. I wonder if you have the ability to do the same. Look in the mirror? That’s so 1970s... lmao... 

  • Russell BrazilBusiness Member
    Moderator
    Real Estate Agent · Washington, D.C. · Member since 2012 · 17k+ posts · 30k+ votes
    6y

     I tell people the harsh realities they often dont want to hear. Ive made mistakes that have cost me tens of thousands. You know who was responsible? Me.  Personal responsibility. Learn from it, or dont and try to blame others. 

  • Rental Property Investor · Bradenton, FL · Member since 2018 · 73 posts · 61 votes
    6y

    @Alan Mills Hi Alan,  as a buyer you should always work with an agent. It adds a lot of protection and representation and it does not cost you anything. 

    When it comes to real estate contracts, if it is not on the contract it does not exists.  In FL for example if you want the washer and dryer to remain in the house you have to specifically itemized in the contract. 

    Even if those items were in the listing and the pictures, if they are not included in the contract they could be removed from the property.

    When it comes to things that have no specific dollar value, I would have included them on the contract as they do not impact the transaction.  Another option would have been to do a separate contract where you include those types of service items or any personal property that will be provided with the home. 

    Real estate contracts are very complex and specific.  You should always review them and ensure that everything you expect is covered  under the contract.

    At this time, I am sorry to say, I do not believe you have any recourse. 

    Best of luck in the future.

  • Flipper/Rehabber · CO (colorado) · Member since 2019 · 73 posts · 30 votes
    6y

    @Jose L Torres, Thanks for your message. Please see my private message to you.

  • Real Estate Agent & Investor · Raleigh Durham Chapel Hill, NC · Member since 2020 · 44 posts · 30 votes
    6y

    @Alan Mills

    I would gather those emails and file a complaint with the real estate commission against the agent.

    Since you did not use a buyers agent, the agent is working for the seller only. And while the agent owes the seller a fiduciary responsibility, he/she only owes you fairness, honestly and release of material facts ( that is right off the national real estate agent test so it applies in all states). Seems to me there may have been a breach of the fairness/ honest part of that. So let the RE commission do their work and my money says the real estate agent coughs up that interior design.

  • Flipper/Rehabber · CO (colorado) · Member since 2019 · 73 posts · 30 votes
    6y

    @Larry Zucker, thanks for your thoughts. This has been a consideration. We have thought about it, and we do feel that the situation could have been handled much better by the agent, including choice of words when communicating a forceful stance in the matter. It is people like this (and I will add, a largely inexperienced realtor) who give the profession a bad name.

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