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Real Estate Brokers Are Winning Legal Battles Over Commissions

By
Real Estate Agent with The Gasset Group & Get It Done For Me Virtual Services 13253167-SA00

Real Estate Brokers in Florida are winning many legal battles over their rights to keep their commissions that were paid to them by developers.

 

The developers are in a bind because buyers have been rescinding their contracts on new condos. Most of these luxury condominium projects were being marketed to real estate brokerages. The developers offered commissions up front and at different intervals during the contract period. 

 

Developers offer all kinds of commission incentives to brokers. Most of the time the incentive is that at the signing of a contract and clearance of deposit you could get half of your commission and the rest at closing. They also run marketing that includes getting (example) 1/3 at clearance, 1/3 at removal of all contingencies and 1/3 at closing. Mercedes Benz, Trips abroad, Cruises and Jewelry are a part of many marketing strategies builders and developers use. 

 

Well, after the buyers started to back out of their contracts because of the turn down in values on these unbuilt projects the developers began to sue the brokerages to get the commissions back. So I wonder do they want the brokers to also refund the value of a cruise you already went on? 

 

There was a problem with that. The biggest problem the developer faces in trying to get the commissions back is that they are keeping the buyers' deposits and they do not want to give the buyers' their deposits back. You really can not have it both ways, well, not at least in the eyes of a judge. 

 

The other problem with developers doing this is the real estate brokers will then be leery to bring their clients to their developments because there is a lack of assurance that they will be able to keep all of their commissions. The last thing a developer needs right now is for any Real Estate brokerage to be on their bad side.

 

One developer based in Miami filed suit against some brokerages to get $400,000 returned to them earlier this year. Most of the cases have been dropped or settled amicably. 

 

We always read the fine print on each of these incentives. According to most of the brokers there was not a provision for the buyer backing out of the deal. If the developer keeps the deposit and the buyer forfeits their deposit, the brokers have every right to keep their commission.

 

We have a clause in our listing agreements that if a buyer defaults we retain 50% up to our commission of that deposit. Sellers understand that we are running a business and have business expenses. The last one where a buyer just did not show up for closing, our sellers were more than happy to compensate us for our expenses.  

 

 

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Copyright © 2008 By Katerina Gasset, All Rights Reserved.. *Real Estate Brokers Are Winning Legal Battles Over Commissions * Contact Katerina Gasset for Customized Business and Personal Coaching.

 

 

 

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Comments(19)

Donna Marie Godfrey
Godfrey Properties - Pottstown, PA
WOW.....good for you guys in Florida.
May 05, 2008 07:05 AM
Donna Marie Godfrey
Godfrey Properties - Pottstown, PA
WOW.....good for you guys in Florida.
May 05, 2008 07:06 AM
Chuck Carstensen
RE/MAX Results - Elk River, MN
Minnesota/Wisconsin Real Estate Expert

Sounds like those deals are getting messy. Its tough for builders now.

May 05, 2008 07:13 AM
Matt Moxhay
Prudential Fox & Roach - Moorestown, NJ
Moorestown Real Estate
"We have a clause in our listing agreement..." We have a clause in our actual agreement of sale regarding the broker's right to a fee if buyer or seller fail to settle.  Do you have a clause in the contract of sale that the buyer forfeits their deposit if they just "walk?"  I hope you were able to still sell that home on behalf of the seller who was "ditched" at the table.
May 05, 2008 08:34 AM
Bryant Tutas
Tutas Towne Realty, Inc and Garden Views Realty, LLC - Winter Garden, FL
Selling Florida one home at a time

Katerina, I'm not sure I agree with these lawsuits. It would completely depend on how the commission agreement was written and would have no bearing on whether or not the buyer refused to close and the builder kept their deposit. Unless of course I'm missing something.

I wrote about this topic awhile back and at that time pointed out that many of these commission agreements had a clause in fine print that the upfront commission had to be returned if the deal didn't close.

If the buyer refused to close the builder would have every right to keep the deposit. Should they have to then share it with the selling agent? My question would be why?

It should be interesting to see how all of this plays out.

May 05, 2008 08:47 AM
Jason & Deanna
Breckenridge, CO
Wow! we deal with condos all the time. But our developers have never done any of the pre-closing commision advance incentives. I agee with you that developers can't have it both ways.
May 05, 2008 08:54 AM
Katerina Gasset
The Gasset Group & Get It Done For Me Virtual Services - Provo, UT
Amplify Your Real Estate & Life Dreams!

Bryant - The developers wanted it both ways. They want to keep the buyers deposits and take back commissions. If they give back the deposits I think they might have cause. Most of the law suits have been dropped or settled because the developers do not want to alienate any brokers from participation. So far with one huge developer there is only one large brokerage that has not come to terms. Of course, there is a lot of confidentiality surrounding these cases so we may never know all the details. 

So far most of the buyers that do not close walk away from deposits. My very best friend walked away from $30,000 because the price she was buying the unit for had dropped to less than 1/2 of that in value today! She would be throwing good money after bad so it was better just to walk away. She did not even try to get her deposit back.  

May 05, 2008 09:33 AM
Bryant Tutas
Tutas Towne Realty, Inc and Garden Views Realty, LLC - Winter Garden, FL
Selling Florida one home at a time
Katerina, I guess I'm just missing what the deposit has to do with the commission. It's two different agreements. The broker is not a part of the purchase agreement. Maybe I'm just thinking too hard for a monday:) 
May 05, 2008 10:32 AM
Terry & Bonnie Westbrook
Westbrook Realty Broker-Owner - Grand Rapids, MI
Westbrook Realty - Grand Rapids Forest Hills MI Re
We had that here for a short time but most of the builders here would pay at close and I think of the builders left in the market it couldn't be any other way. Good Luck down there.
May 05, 2008 12:42 PM
Katerina Gasset
The Gasset Group & Get It Done For Me Virtual Services - Provo, UT
Amplify Your Real Estate & Life Dreams!
Terry- We don't usually show condos so it is not that much of an issue for us. I am just glad that the brokers are keeping their commissions. 
May 05, 2008 03:23 PM
Katerina Gasset
The Gasset Group & Get It Done For Me Virtual Services - Provo, UT
Amplify Your Real Estate & Life Dreams!
Donna- Thanks!
May 05, 2008 03:24 PM
Katerina Gasset
The Gasset Group & Get It Done For Me Virtual Services - Provo, UT
Amplify Your Real Estate & Life Dreams!
Chuck- It is tough with the market. Many have just stopped building. This is mostly the condo market in Miami that got hit the hardest. 
May 05, 2008 03:25 PM
Katerina Gasset
The Gasset Group & Get It Done For Me Virtual Services - Provo, UT
Amplify Your Real Estate & Life Dreams!
Matt- We have it in our contracts that if the buyer walks he loses his deposit. But the part of us getting part of the deposit is in our listing agreement because that part is between the seller and the agent. The contracts that the builders use are different than the ones the agents use. 
May 05, 2008 03:27 PM
Katerina Gasset
The Gasset Group & Get It Done For Me Virtual Services - Provo, UT
Amplify Your Real Estate & Life Dreams!
Jason and Deanna- Thanks for commenting on my blog. The developers here use all kinds of incentives to attract brokers to their condos.
May 05, 2008 03:29 PM
Katerina Gasset
The Gasset Group & Get It Done For Me Virtual Services - Provo, UT
Amplify Your Real Estate & Life Dreams!
Gene- I happen to not agree with that. Commission is earned when an agent has done all they are called to do within the listing agreement or the sales contract, sometimes that means at the successful closing and other times it means just they you did your part in the contract iwHere when  a buyer defaults, the agent may be entitled to a portion of the deposit. We certainly have that clause in our contracts. 
May 05, 2008 03:49 PM
Katerina Gasset
The Gasset Group & Get It Done For Me Virtual Services - Provo, UT
Amplify Your Real Estate & Life Dreams!
Byrant- Many of the developers had written in their contracts with the brokers in their coop agreement that the broker would be entitled to part of their commission upon the clearance of the deposit check. The rest would be due at closing. The brokers' attorneys assert that there is no refund clause within these agreements and should the buyer default just as is in a listing agreement the broker is then entitled to a portion of the deposit. You see this a lot more in big commercial and land deals wherein the broker is entitled to commissions even when a property does not close under certain circumstances spelled out in the agreements between the parties. There are commission agreements that we have in non disclosure, non circumvent agreements that do embody the seller, the buyer and the broker all as parties to a contract. 
May 05, 2008 04:00 PM
Bill Gassett
RE/MAX Executive Realty - Hopkinton, MA
Metrowest Massachusetts Real Estate
Katerina it is no surprise the developers are fighting a losing battle. A contract is a contract and unless it was spelled out the broker would not get paid if the buyer backed out the agents should get to keep the monies that were paid out.
May 06, 2008 12:34 AM
Katerina Gasset
The Gasset Group & Get It Done For Me Virtual Services - Provo, UT
Amplify Your Real Estate & Life Dreams!
Bill- I agree. But the bigger thing is that if the developers alienate the brokers, the brokers may get a bad taste in their mouth for that particular developer. They certainly do not want to take a chance doing that in this Miami condo market! 
May 06, 2008 01:23 AM
Bryant Tutas
Tutas Towne Realty, Inc and Garden Views Realty, LLC - Winter Garden, FL
Selling Florida one home at a time
Thanks Katerina. I get it now:)
May 07, 2008 12:12 AM