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Seller furious after 'careless' act exposed

Ilyce Glink
Inman News

Q: My listing agent allowed the buyer to move into my house before the closing without my knowledge or consent. I found out because I went there to meet a paper shredding company and found that the buyer had given him access to the property and instructions to destroy all my files when I needed to keep half of them as a matter of law (I am a health professional).

I am very angry and shocked that my listing agent would be so careless and negligent with my property and belongings (this was not our primary residence). Is there any merit to filing complaints with the state licensing board? Could the agent lose his license over this?

A: It's horrifying to think that your listing agent would cede control of your property to the buyer without your permission, especially since you still had documents and other personal possessions in the property.

This is the kind of bad behavior that gives agents a bad name. You should not only file a complaint with the licensing board, you should take it up with the managing broker of the firm where your listing agent works.

You may also want to have a conversation with a real estate attorney to see if there are any quantifiable damages that stemmed from the agent's behavior and to explore any legal options that you might have.

In most states, listing agents have a duty to make sure the seller's interests are taken care of. As a listing agent, they are supposed to represent the best interest of the seller, and it would not seem that this listing agent represented your best interest by giving the keys to the home to the buyer. What if the buyer failed to close on the purchase of the home and refused to move out? Would your listing broker then pay the costs to evict the buyer?

If the contract allowed the buyer to move into the home prior to the closing, then the listing broker's actions should be fine, but absent some legal requirement to allow the buyer to move into the home prior to the closing, the listing broker might have quite of explaining to do. Your best bet is to talk to an attorney about this issue, in addition to talking to the managing broker that supervises your listing agent.

One last item: If your listing agent used a lock box that allowed your home to be showed and the buyer's agent was responsible for giving the keys to the buyer, that buyer's agent might have some responsibility. Please make sure you have all of your information before you walk into the listing agent's office to talk to the manager.

Q: We are under contract to buy a house and we're supposed to close tomorrow. Is there any way we can get out from under the contract and cancel the escrow? We are sick of the house already.

A: I don't know if you can cancel your contract. You have to review your contract to see whether there is a legitimate out for you other than being "sick of the house already."

Typically, contracts don't provide an out for people who simply change their mind. I'm not an attorney, but a purchase contract binds a buyer and a seller to a specific deal. If your seller had wanted to cancel the contract to sell the home to another buyer who had offered more money, you would be running to court to sue the seller. Likewise, a seller may have legal rights against you if you fail to honor the terms of the agreement. ...CONTINUED

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Contracts give buyers some ability to get out of the deal. These outs are usually related to your inability to get financing, if the house doesn't pass inspection, if the house doesn't appraise out in value, or if the seller is unable to give you clean title to the home. But in each of these instances, the contract usually has a provision that would give you the right to walk from the deal.

If you don't have a legal right to walk from the deal, the seller will have certain legal rights against you for your failure to close. Typically you might forfeit your down payment or earnest money deposit. But in some cases, the contract might allow the seller to sue you for damages. Those damages could be far in excess of your down payment or earnest money deposit.

The best person to talk to is a real estate attorney, who can look over the documents you've signed and help you figure out what's going on with your deal, help you negotiate a termination of the contract, and lessen your damages under the contract.

Q: I'm 53 years young and I'm wondering if I am too old to buy my first home. I have lived in apartments for most of my life. I'm single and like it that way but feel as if I'm throwing my money down the drain. What do you think?

A: Well, you're only a few years older than me, and you're decades younger than the 70-something woman who wrote in asking the same question not too long ago.