One of the things that happens in the real world is that homesellers sometimes change their minds about moving.
Sometimes the job in the next state doesn't come through.Sometimes housing in that nice, move-up neighborhood is a little moreexpensive than they thought.
And sometimes life just happens: Situations change and would-besellers decide maybe they should stay where they are.
The situation gets a little awkward, however, when the sellerand a real estate agent sign a legal "listing agreement" giving theagent six months to sell the house, but three months later thesellers change their minds.
The situation gets even more awkward when suddenly a buyer showsup with an offer. Then something like what happened to this womantakes place:
"The house had been on the market four months," she said, askingthat her name not be used. "Nothing was happening. We hadn't heardfrom the agent. We hadn't had any offers. And we pretty muchdecided it wasn't going to sell.
"So we started making plans (based on living where we were). Wekind of figured we'd just let the listing agreement expire and thatwould be that."
And then? "They came back with a better offer. But we didn'twant to take it."
Getting to the punch line: "They finally came in with a fullprice offer. They met every one of our terms. We didn't budge onanything, and they still wanted it.
"We sold it. We felt we pretty much had to. We bought anotherhouse (not far away) and moved."
While the awkwardness of the situation may have beenunavoidable, what turned out to be a nearly forced move certainlydidn't have to happen.
"The first mistake the sellers made was assuming that justbecause they hadn't heard from the agent, the agent wasn't working tosell the house," said James F. Bruce of Coldwell Banker Premier inMilwaukee.
"When the sellers changed their mind, they should have talked tothe agent right away."
Bruce pointed out that in Wisconsin, as well as most otherstates, a "listing agreement" is not a contract between a seller andan agent to sell the house - it is a contract for a commission to bepaid to the agent as soon as that agent produces a "willing and able"buyer.
Nothing in that agreement requires a seller to go through withthe deal.
A buyer arriving at a seller's door with cash in hand legallycould be told to hit the road. That would, however, leave the peskyproblem of the real estate agent's commission to be dealt with.
Legally, the agent will have fulfilled his or her obligation tothe sellers under the contract - having produced a "willing and ablebuyer." An argument could be made, therefore, that the agent isentitled to the commission - whether the house actually sells or not.
As a practical matter, however, Bruce said that issue usually isnot pursued. It's the kind of thing that could end up in a lawsuitthat costs everyone money.
What would have saved everyone some grief, said Bruce, is if theseller had been candid in the first place.
"We've had situations where sellers have decided not to sell,and have offered to reimburse the agent for his expenses," he said,such as money paid to advertise the home and other out-of-pocketexpenses. "I think that's only reasonable."
And what about the buyer, who has fallen in love with the house,only to be jilted. Is there any recourse for the buyer?
"Not really," said Gail Lyons, a Boulder, Colo., broker andexpert on real estate law. "You can't really force someone to sell.You can make a stink, threaten to file a lawsuit, but the likelihoodof it getting anywhere isn't very great.
"If the seller hasn't signed any kind of contract (with abuyer), then a buyer can't come back and claim lack of performance ofthat contract."
One caveat: If you decide not to sell the house after you'veseen the potential buyers, you could have problem - especially ifthose buyers are members of a "protected class" under fair housingrights laws.
For instance, you could be subject to a lawsuit if you refusedto sell to someone on the basis of race, religion, sexual preferenceor family status (such as the number of children in the family).
By the same token, however, not everyone is a protected class.
"We had a condo owner who refused to sell his condo to alawyer," Bruce said. "The lawyer wanted to file suit, claimingdiscrimination. But lawyers aren't protected."
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