Are your rights sold from under you when you sell?

Attract more buyers and fewer lawyers

When selling your home though a real estate agent, there are State Government laws with which agents must comply. If a vendor has any issues relating to the sale of their property, they should raise it first with the estate agency’s principal. Rarely, because of professional embarrassment, do issues make it to a higher authority.

It is not a legal requirement to sell your home through a real estate agent. No agent is legally allowed to represent a property for sale, unless they hold a signed authority from the vendor. They also need this to get paid.

There are several formats you can choose when selling through an agent. Depending on the State in which you live, the two most popular are, generally speaking:

• Open listing– list with as many agents as you like. Only the agent that sells the property gets paid.
• Exclusive agency– sign with only one agent. That agent is paid when a sale occurs, even if you sell it privately yourself.

You only pay a sale fee if the property is sold. However, you may have advertising and/or auctioneer costs even if it remains unsold, unless the agent has offered that for free, in which case you must have that promise in writing.

What if you just want out of the relationship?

Cancelling an authority is tricky.

First, you should review the terms of the agency agreement you signed to check how you can terminate the agency. Those terms may allow you to give notice to terminate the agency. If you can terminate the agency on giving notice and you don’t want any future involvement with them, you can direct them not to allow further inspections during the termination notice period.

Ask them to provide you, or any new agent you appoint after the termination notice period, with a list of buyers to whom they have introduced the property. Both agencies must negotiate the terms on which they will deal with those buyers, as you don’t want to pay double commission on a buyer to which both agents lay claim. When a sale eventuates, make sure you, or your solicitor, settles which agent represents the buyer before signing.

Also, ask for itemised media costings and the return of unpaid advertising as well as keys.

Some home truths

• Always remove valuable property during open-for-inspections. If theft occurs, you don’t have the right to be reimbursed by the agent.
• On settlement day, you are legally bound to hand over the property in the same condition it was in when it was inspected by the purchaser. Unless noted in the contract, chattels (light fittings, carpets, wall furnishings, etc.) must be as inspected.
• There is no law that says you have to sell. Even if the agent turns purple explaining what a great offer you have, it’s still your choice.
• However, once you sign a sale document, you’re locked in. The sale can be withdrawn if both parties choose, but the agent can still claim a sales commission.

Remember, don’t be browbeaten into ‘throwing in’ the furniture, art or pool cleaner if it wasn’t in the contract. Even though buyers have rights, it’s your property. You’re in control.

You should always speak to your legal adviser about your legal rights to property. However, if you want a general discussion about a property matter, your mortgage loan broker is a great source of information. These professionals are exposed to many aspects of the real estate sale cycle, and a quick call may provide all the answers you need as well as ease any worries.