Question
DEPOSIT and the COMMISSION
If the deal (a firm deal, all conditions waived, satisfied or fulfilled) falls through, do the agents have first claim to the deposit for their commission?
Answer
The difficulty here is that the agents (through their respective Brokerages) were not made beneficiaries of the trust. So far, the Listing Agreement skirts around that issue. This means that if both parties agree the deposit can be moved to another stakeholder, the agents will lose their grip on the deposit. The Court will determine who has an interest, and the answer to that will be the two parties to the agreement. At least, that’s the way it is now. Simple fix, though! If you really, really want to be sure of being paid, amend this provision and make absolutely sure that you maintain custody, or someone you know maintains custody while everything gets sorted out, specify that the Brokerage is a party to the trust and a beneficiary of the trust, just like the Seller and the Buyer.
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