Advice on Listing Agent Misrepresenting Property

Matthew Drew · 2013-11-15T19:37:21-08:00

Hello, We are currently in the option period for a house, and there are some minor repairs that need to be done. We also sent an amendment to the Listing Agent, along with a copy of the inspection. Today, we received an answer that in lieu of making any repairs, they would leave the refrigerator. Since we first found this house, the MLS states that the refrigerator was included in the sale. Once we mentioned this to the Listing Agent, she quickly said that it was a mistake. An hour later, we watched as the MLS website was edited. Since the statement "Refrigerator Included" has been on the MLS for over 64 days now, our agent did not see the need to line item the refrigerator on the sales contract. We even asked for a copy of the receipt for the refrigerator, and they responded that they did not have it. This is a nice, 2-4 year old, stainless refrigerator that should retail between $1500-2500. It is our experience that the Listing Agent has the client sign off on everything that is posted on the MLS. But, due to this mistake why are we the ones to pay for the mistake? Could any realtors chime in with some advice? We are just a little disappointed because the Listing Agent proudly displays all of the various accreditations, and this is a big name brokerage. Also, since the trust is broken with the sellers and Listing Agent, do we need to amend the sales contract and line item all major appliances, light fixtures, etc.. This is in The Woodlands, Texas… Thanks, Matt

Erik HitzelbergerPro Member

Investor · Louisville, KY · Member since 2011 · 331 posts · 278 votes

12y

I am not familiar with Texas real estate contract law, so the following may not apply. In KY, the listing remarks are not part of the contract. Thus, if you want personal property (something like a refrigerator that is not attached to the house), you have to write it in the contract. We usually write for the dishwasher and over-the-range microwave to remain also even though these are considered real property. As you are painfully aware, ambiguity is bad.

If you are expecting anything else (free-standing stove, laundry set, lawn mower) that is personal property you should have your agent clarify the contract.

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Patrick Connell

REALTOR® · Bastrop, TX · Member since 2013 · 324 posts · 191 votes

12y

@Matthew Drew

Like many things in RE, if it's not in writing then it's no good. Sometimes, the MLS listing can be wrong for a variety of reasons; meant to click something you didn't, accidentally clicked something you shouldn't, etc. I don't think this should be a reason to believe the listing agent is acting in bad faith. It may have genuinly been a mistake.

However, even if it wasn't a mistake and the fridge was going to be included, it still should have been listed on a "Non-realty items addendum" and submitted as part of the offer; TREC No. OP-M.

Since you're using an agent I assume you're using the appropriate TREC Forms. Check your copy of the sales contract. Section 2B and 2C already list everything that is assumed to be included. Section 2D excludes items the seller wants to keep (special chandelier, custom bookcase, etc.). If something isn't listed in those two sections then you need to add it to the above form.

I hope this helps some. Also remember, the MLS is not an offer or contract.

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Wayne Brooks

Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes

12y

Sorry, but this post should be renamed....buyer and buyer's agent goof up. These types of items are always addressed, very specifically, in the purchase contract. Your agent made a mostake. So, it's a matter of if you want the deal after what the inspections revealed.

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Joel OwensBusiness Member

Moderator

Real Estate Broker · Canton, GA · Member since 2010 · 15k+ posts · 11k+ votes

12y

You know what they say when people ASSUME things.

I can't give legal advice.

Most times MLS have a little saying everywhere on website and papers to the effect of:

"Information deemed reliable but NOT guaranteed"

What this means is MLS will not be held responsible for statements made and it's up to all parties to validate the info. So it's unlikely you could pursue the MLS.

The listing agent saying it was a mistake wouldn't cut it with me. Anything you offer on it's a good idea to have your buyer broker print the MLS listing page. I have found agents before trying to change co-op on commission and other things like they never existed. The commission doesn't belong to the listing agent but the brokerage they are licensed with. I could take the paper where they changed something and show to the MLS for them to sanction their brokerage for violating MLS policies etc.

So there are a few things here to try. Your buyers broker should have also had everything in the contract. Being listed on MLS does not make it part of the contract. If the contract just listed fridge anyways the seller could take the expensive one and slap a 225 depo cheapo in there. You have to take pics with serial numbers and model information etc. and attach to the contract.

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Patrick Connell

REALTOR® · Bastrop, TX · Member since 2013 · 324 posts · 191 votes

12y

Originally posted by Joel Owens:

The listing agent saying it was a mistake wouldn't cut it with me. Anything you offer on it's a good idea to have your buyer broker print the MLS listing page. I have found agents before trying to change co-op on commission and other things like they never existed. The commission doesn't belong to the listing agent but the brokerage they are licensed with. I could take the paper where they changed something and show to the MLS for them to sanction their brokerage for violating MLS policies etc.

Joel, I agree this is one way to handle it but I believe at most the brokerage might have to pay a fine. I don't believe this would help the buyer at all and using the complaint as leverage would be highly unethical; not saying you suggested that, just making the comment.

I would also have a hard time reporting the other brokerage unless I thought they were truly playing "dirty pool" and trying to be deceptive. I have made mistakes on an MLS listing before and it was simply a matter of forgetting to check a box or vice versa; none of us are perfect and so I'd like to give them the benefit of the doubt, at least initially.

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Matthew Drew

OP

Investor · Houston, TX · Member since 2013 · 7 posts · 0 votes

12y

Thanks for the replies..

Yes, we did not line-item the refrigerator, so that is our fault. I have been depending on my agent too much as I am in a different country.

Therefore, to ensure there are no other misunderstandings, we are going to put in an amendment tomorrow such as light fixtures, cooktop, etc. The cooktop is a Thermador, and there are some very expensive light fixtures.

Do I need to send my agent over there and take pictures, collect model numbers of everything, and get extremely specific?

Do we have itemize everything such window coverings, ceiling fans?

What if they attempt to replace any item with something of lesser value?

What is the best language to use in the contract, so it doesn't happen again?

Regarding the Listing Agent, she has been extremely difficult to work with. She even told us that she wasn't going to submit our offer to the sellers as it was too low. So, I had to put in a transmittal letter reminding her of her duties to make sure the sellers got the offer. To make a long story short, we attempted to work with the sellers, then walked away. Then they came back a month later and accepted all of our terms and the "low offer."

I guess my next post will be "How to find a good agent?"

Thanks,

Matt

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Chrissy Young

Glendale, CA · Member since 2013 · 13 posts · 0 votes

12y

Are you getting a descent price on the house? if so, I wouldn't be too fixated on the used appliances inside.

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Matthew Drew

OP

Investor · Houston, TX · Member since 2013 · 7 posts · 0 votes

12y

Eh… the price is market...I will just say that it is my wife's "dream-home"….. I was lucky enough to convince her it was way overpriced in the first place and got her to walk away.

The fridge isn't a big deal to me at all: we are going to tell them to keep it. It is just a realization that I might be subject to another surprise when we walk in the door if I don't change the contract.

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Patrick Connell

REALTOR® · Bastrop, TX · Member since 2013 · 324 posts · 191 votes

12y

Originally posted by Matthew Drew:

Thanks for the replies..

Yes, we did not line-item the refrigerator, so that is our fault. I have been depending on my agent too much as I am in a different country.

Therefore, to ensure there are no other misunderstandings, we are going to put in an amendment tomorrow such as light fixtures, cooktop, etc. The cooktop is a Thermador, and there are some very expensive light fixtures.

Do I need to send my agent over there and take pictures, collect model numbers of everything, and get extremely specific?

Do we have itemize everything such window coverings, ceiling fans?

What if they attempt to replace any item with something of lesser value?

What is the best language to use in the contract, so it doesn't happen again?

Regarding the Listing Agent, she has been extremely difficult to work with. She even told us that she wasn't going to submit our offer to the sellers as it was too low. So, I had to put in a transmittal letter reminding her of her duties to make sure the sellers got the offer. To make a long story short, we attempted to work with the sellers, then walked away. Then they came back a month later and accepted all of our terms and the "low offer."

I guess my next post will be "How to find a good agent?"

Thanks,

Matt

Grab your copy of the contract, look at the above referenced sections. Those things are considered fixtures and should not change once the contract goes into effect; the exception being if they listed something in 2D. Have your agent take pictures for you.

List things not already covered in 2B and 2C that you want with the house, be specific.

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Patrick Connell

REALTOR® · Bastrop, TX · Member since 2013 · 324 posts · 191 votes

12y

Originally posted by Chrissy Young:

Are you getting a descent price on the house? if so, I wouldn't be too fixated on the used appliances inside.

Agreed. Submitting another form with "50" things listed on it out of spite or because you're annoyed with them could kill the deal.

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Matthew Drew

OP

Investor · Houston, TX · Member since 2013 · 7 posts · 0 votes

12y

Hi Patrick,

In 2B on the contract it defines "improvements." This is a custom kitchen, and my agent assumed it is "permanently installed and built-in."

The space for the refrigerator is custom trimmed around the fridge making it appear as "built-in."

It there any precedent set to determine what is "built-in."

Thanks,

Matt

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Patrick Connell

REALTOR® · Bastrop, TX · Member since 2013 · 324 posts · 191 votes

12y

Originally posted by Matthew Drew:

Hi Patrick,

In 2B on the contract it defines "improvements." This is a custom kitchen, and my agent assumed it is "permanently installed and built-in."

The space for the refrigerator is custom trimmed around the fridge making it appear as "built-in."

It there any precedent set to determine what is "built-in."

Thanks,

Matt

Matt,

I'm not comfortable giving you a direct answer on that without being able to put my own eyes on it. As a general rule though, an improvement that's been designed to fit a specific space or part of the house and installed would be a fixture and therefore a part of the house.

But no matter how well they trimmed it out, I can't see a fridge appearing built in because you have to be able to move it in and out freely for maintenance, repair, etc. That's a big difference from a bookcase that was built into a space and secured to the wall, as an example.

Let them keep their fridge, get them to do the repairs. Just make sure to get the model of the fridge LOL.

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Advice on Listing Agent Misrepresenting Property

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