There’s always something to howl about.

Ask the Broker: Can I cancel my listing agreement . . . ?

I am currently in a contract with an agent who is not only disappointing me with her lack of enthusiasm and professionalism, but seems to be giving up on my house as well. She keeps saying she doesn’t know what else to do, short of lowering the price of the house dramatically, which I’m not willing to do — we’ve already come down by about $100,000 — not sure we can go much lower than that! So if we’re mutually unhappy/dissatisfied with the arrangement, what are my options? Do you think it will be easy to “legally” get out of the contract? I have a few more months left, but I am hoping to get out ASAP. I really feel that listing with her is a waste of time. What do you think I can do, and is this a common situation?

Very common situation right now, I’m afraid.

I’m going to assume you signed an Exclusive Representation contract, a normal listing agreement. Unless there is explicit language in that contract providing for unilateral cancellation, it can only be cancelled by mutual consent.

As a matter of course, all of our employment contracts include this language:

This agreement will be terminated without recourse upon written notice by either party.

If you’re done with me, I’m done with you. Another way of doing something similar is a buy-out clause: You can unilaterally cancel upon payment of a contract buy-out fee. That may seem unfair, given that your house hasn’t sold, but your agent went out of pocket on the listing expecting to have six months (or whatever) to recoup that investment. For my own part, I don’t want to take your listing unless I’m convinced I can hang a “SOLD!” sign within a month.

But there may be a way out of this labyrinth. My very first listing cancelled on me. I went to my broker at that time and said, “The seller wants to cancel, but it’s your listing contract, not mine. What do you want me to do?”

And the answer he gave me was beyond wisdom, in essence a one-sentence encyclopedia on how to run a real estate brokerage sanely and equitably. Here is what he said:

“We can’t sell it for her if she won’t let us.”

In other words, if the seller was so upset that she would not entertain any offer, there would be no point in holding her to the strict terms of the contract. She wasn’t actually that mad, but, like you, she had lost all confidence, so there was no reason to believe we could do her any good — especially not against her will.

So that’s my answer to you: Go to your agent’s broker and graciously ask to be let out of the contract. If they want a buy-out fee, pay it if you think it’s reasonable. If they won’t let you out, or if they want to hijack you with an exorbitant buy-out fee, patiently explain that you are going to devote the rest of your life to describing your experience with that brokerage to everyone you meet.

With luck, reason will prevail. If not, you’re stuck. Sweat out the contract and keep your eye out for listing agents who can get the job done. I’m sorry that you’re in this situation. My belief is that the kind of termination language I quote above should be boilerplate in every real estate employment contract. Make sure you include in every exclusive employment agreement you sign from now on…

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