DEAR BOB: What recourse does a home seller have against a “deadbeat real estate agent”? Knowing we are in a buyer’s market, I signed a listing with a high-profile realty agent professing to have great marketing skills and a fabulous sales record. What I wound up with was an agent who put up the for-sale sign, listed my home on the MLS (multiple listing service), and then disappeared. No communication, no updates about marketing, and more important, no showings. Can I cancel the listing contract with no penalty and list with another more competent agent? –Suzanne Z.

DEAR SUZANNE: Your report is shocking. It sounds like you listed your home with a “numbers agent” who takes lots of listings, knowing only some of them will sell.

Purchase Bob Bruss reports online.

Before giving up on your listing agent, phone him to discuss the situation. Ask why he didn’t have a broker’s tour for local agents. Ask what specific advertising he is doing for your home. Ask when he will be holding weekend open houses (don’t fall for the line “Open houses don’t result in sales.”) Ask what he is doing on the Internet to sell your home. Ask if there is anything you can do to help him shape up and sell your home.

Be persistent but extremely polite. Don’t lose your cool. Tell the agent you are very disappointed and you expect him to phone you at least once every week to report his progress selling your home.

If he refuses to cooperate, tell him you want your listing cancelled immediately in writing so you can list with a more effective agent.

Another alternative before canceling the listing is to speak with his office brokerage manager. Explain why you are justifiably unhappy. That manager should either suggest switching the listing to a better agent within the same firm or agreeing to cancel your listing.

But before you re-list with another agent, please interview at least three successful agents who sell homes like yours in your vicinity. Also, I suggest you study my new special report, “How to Sell Your House or Condo for Top Dollar in a Buyer’s Market,” available for $5 from Robert Bruss, 251 Park Road, Burlingame, CA 94010 or by credit card at 1-800-736-1736 or instant internet delivery at


DEAR BOB: I own a rental property with an ARM. The mortgage balance is about $74,000, and the property is worth around $714,000. My ARM is getting close to its next interest-rate adjustment in November. The lender urges me to refinance with a fixed-rate mortgage for 10 years. I am 76, retired, and think refinancing is risky and expensive. The rental income will more than pay an interest-rate adjustment, which is tied to the 11th district cost of funds index. What should I do? –Diana C.

DEAR DIANA: If I were in your desirable shoes, I wouldn’t do anything. It sounds like you have an excellent ARM with a low balance compared to your property value. It is tied to the 11th District Cost of Funds Index, which moves as slow as molasses.

Unless you have a need to refinance to take out tax-free cash from your huge equity, I see no reason to refinance even after your ARM adjusts. Enjoy the cash flow.


DEAR BOB: I put my apartment units up for sale. A buyer made a purchase offer, which I accepted. He paid $2,000 good faith money. But I changed my mind and want to stop the sale. What penalties will I incur? –Larry Y.

DEAR LARRY: It sounds like you have “seller’s remorse” disease. If I were the buyer’s real estate attorney and the buyer still wants to purchase your apartments, if you refuse to deliver the deed as agreed in the contract, I would advise my client to file a specific performance lawsuit against you and record a “lis pendens” against the title.

Unless you have a valid legal reason to default, the court will issue a mandatory injunction ordering you to deliver the deed under the terms of the sales contract.

Before you refuse to perform under the contract, I suggest you contact the buyer and the realty agent to have a friendly conversation about being released from the sales contract. The realty agent has a stake in this situation and might sue you for lost sales commission. For more details, I suggest you retain a real estate attorney.


DEAR BOB: I am considering getting a senior-citizen reverse mortgage on my home. But what happens after I die? Who makes the decisions concerning the sale of my home such as selecting the real estate agent, asking price, repairs to be made, and whether to “stage” the house for sale? Who makes the decision to accept an offer or make a counteroffer? What if my son does not accept an offer and the house sits empty? What action can the reverse-mortgage holder take? –Frank M.

DEAR FRANK: Presuming your son is your sole heir, if he doesn’t cooperate with the lender to pay off the reverse-mortgage balance after your death, the reverse-mortgage lender can hold a foreclosure sale.

Then the lender gets paid the mortgage balance, and any foreclosure-sale excess cash goes to your heir.

However, if your heir wishes to keep the house, he can obtain a new mortgage to pay off the reverse-mortgage balance and then own the house subject to the new mortgage.


DEAR BOB: Our neighbor recently sold her property and carried back a $20,000 mortgage on the $120,000 sale. When the neighbor moved out of state, we assumed that mortgage and installment note. We thought if the borrower defaults, we could foreclose and the property would become ours. But a friend told us a public auction is required and we would have to outbid any other bidders to retain the property. Is this correct? The payments are now four months in arrears –Susan M.

DEAR SUSAN: Don’t worry. As the foreclosing lender, you can submit a “credit bid” for the amount that is owed to you, including attorney or trustee’s fees and other expenses of foreclosure.

With the monthly payments four months in arrears, it’s well past time for you to consult a local real estate attorney to start the foreclosure.

A public auction is required. If a bidder shows up and bids $1 more than the amount owed to you, including costs, then you receive that cash and walk away happy. If no bidders show up, you get title to the property subject to any first mortgage, hopefully for a profit.


DEAR BOB: My nephew is interested in acquiring, renting and perhaps selling residential properties. I told him I would try to get the names of some good books for beginner real estate investors. Any suggestions? –Ed K.

DEAR ED: Two recent good books for your nephew are “Real Estate Investing for the Utterly Confused” by Lisa Moren (very basic, but a good start) and “Buy Even Lower” by Scott Frank and Andy Heller (written by two successful investors). Both are available in stock or by special order at local bookstores, public libraries, and


DEAR BOB: I have owned and lived in my home about six years. I want to build a single-family house on my large corner lot. Can I live in the new house for two years without paying capital gains tax and, if I rent my old house, am I still exempt from capital gains tax when I decide to sell? –Julianne S.

DEAR JULIANNE: If I understand your question correctly, you plan to move into the new house to be built and then rent your current residence for a few years before selling it. Until a property is sold, no tax consequence occurs.

To qualify for the Internal Revenue Code 121 principal-residence-sale tax exemption up to $250,000 (up to $500,000 for a qualified married couple filing a joint tax return), you must have owned and occupied the home at least 24 of the last 60 months before its sale.

That means you can rent your old home up to 36 months before losing your IRC 121 principal residence sale tax exemption. For details, please consult your tax adviser or read my special report, “2006 Realty Tax Tips: Eight Chapters of Tax Savings for Homeowners and Realty Investors,” available for $5 from Robert Bruss, 251 Park Road, Burlingame, CA 94010 or by credit card at 1-800-736-1736 or instant Internet delivery at Questions for this column are welcome at either address.

(For more information on Bob Bruss publications, visit his
Real Estate Center

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