June 29th, 2012 at 7:05 pm
That being said, in the course of the mediation, and because the sellers lied, the question became what we did after March to show that we believed the listing was still valid and that we had been promised that the house would still be sold. Of course, our agents described many conversations with the sellers, and the excuses they gave us to keep from marketing the property. When the sellers denied that these conversations ever took place, the mediator asked us for the obvious thing: writings to show what we did. Where were the e-mails, he said, that showed that we acted consistently with our story? Where were the e-mails or writings asking to market the property after the refi was done? Where was the proof that we contacted the seller like an agent with a listing would do? In response, our agents found only two e-mails from March through December. They claimed to have had many phone conversations in that period, but only had two writings. When the seller lied and denied these conversations, unfortunately, we were left in a liar’s contest with the seller, had a weaker legal position than we would have otherwise had and probably got less money than we would have otherwise received.
So, what is the lesson of this story? In truth, there are two lessons. First, as we tell you all the time, when you get the feeling that you may have a problem with a client or transaction, begin to put things in writing. E-mail has actually made this very easy for us. After talking to your client about the issue you are concerned with, confirm it in an e-mail. It is a very non-threatening way to create a written record. You don’t need a signature or have to confront the client in person. You just send a casual e-mail. And, of course, if a problem arises in the future, and your client lies, you have the writing to establish the truth. Remember, in a liar’s contest, the party with a writing from the time of the deal will always win. So please, protect yourself and your commissions by putting things in writing.
Next, with regard to this specific story, we would first like you to avoid assisting a client when they ask for this type of cancellation. However, if you have no choice, and your manager has told you to cooperate, use the Cancellation of Listing Form (COL) and check paragraph no. 1. That way, if the seller then sells the house during our listing period, we are expressly owed a commission. As always, let us know if you have any questions.
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