by Tim O’Dwyer M.A., LL.B
What do you do when your property has been listed for sale and your agent refuses, on the basis of the Privacy Act, to give you the names of prospective buyers introduced to your property? Well, you stick it right up your agent as clients of mine recently did.
These folk had listed their home with a local agent who was a member of the Real Estate Institute of Queensland (REIQ). Their listing agreement with the agent, unusually, did not provide for a sole or exclusive agency. Rather, it was an open listing which meant my clients had the contractual right to try to sell their home themselves. So, while their agent showed buyers through the property, my clients placed their own adverts on the Internet and dealt with a number of consequential private enquiries. When one of these Internet buyers offered to buy at the right price, a private sale was negotiated subject to the parties’ solicitors finalizing formal and binding contracts.
While I was taking instructions on the proposed sale contract, I asked my clients if their property had been listed with an agent. I wanted to ensure that there would be no risk of any agent’s commission claim down the track. The clients told me what they had done and handed me a copy of their open listing agreement. After showing them the fine print, which stipulated how the agent would legally become entitled to commission if the agent was the “effective cause” of any sale, no matter when it occurred, I explained to my clients what this essentially meant: Commission would be payable on their private sale if the agent had, in fact, introduced their buyer to the property. Hence I advised that it was important for them to ask the agent to provide them with the names of all prospective buyers introduced by the agent. Hopefully their Internet buyer would not be on the list but, if he was, they would need to renegotiate their sale price to allow for the agent’s legal commission entitlement.
“No way will I give you any buyers’ details,” said the agent in effect. The formal rely to his clients’ email was courteous, uncompromising (and, of course, total nonsense)…