Editor’s note: Robert Bruss is temporarily away. The following column from Bruss’ “Best of” collection first appeared Sunday, March 26, 2006.
DEAR BOB: I signed a contract with a real estate agent for a four-month listing to sell my home. But he has not done much. I decided not to sell my home; but is there any other way to get out of this listing contract legally and hire a better agent? –Vincent N.
DEAR VINCENT: Presuming you signed a four-month exclusive right-to-sell listing, the listing agent has a fiduciary duty to you to use “due diligence” to get your home sold according to the listing terms.
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That means the listing agent must do at least what is normal and customary, such as placing your listing in the local MLS (multiple listing service), listing your home on the Internet at www.Realtor.com, having your home open for a weekday tour by local realty agents, and advertising your home in the newspapers and other media.
In addition, he might hold weekend open houses, send mailers to neighboring homeowners (who often have friends and relatives who want to move into the neighborhood), and print brochures.
Proving a lack of due diligence by a real estate agent, thus entitling you to cancel the listing, is very difficult. Of course, if the agent didn’t do any of these things listed above, then you could cancel the listing for lack of due diligence.
You say you decided not to sell your home. But in the same sentence you said you want to get out of the listing contract and hire a better agent.
Most agents will allow you to cancel a listing if you decide not to sell. However, they usually include a clause stating that if you decide to sell within 180 days, you will re-list with the same agent.
I suggest you have a frank discussion with the listing agent and the office brokerage manager to resolve your dissatisfaction. Perhaps your listing can be transferred to a better agent within the same firm to get your home sold.
HOW LONG DOES TENANT-AT-WILL HAVE TO VACATE?
DEAR BOB: I used to care for my late father in the house where I now live. After his death, the house was willed to my sister. It recently sold. How long do I have to vacate? Can they come and change the locks? My sister notified me verbally to move out. –Robert N.
DEAR ROBERT: Legally, you are known as a tenant-at-will, or possibly a tenant-at-sufferance if you aren’t paying any rent.
Depending on state law where the house is located, you should be given at least a 30-day written notice to vacate. That presumes you don’t have a written lease for a stated term.
If you fail to vacate after receiving a written notice to move out, the new owners can evict you through a court unlawful detainer proceeding. However, you don’t want to wait that long to move out. Start looking now for another place to live. For more details, please consult a local real estate attorney.
GETTING RID OF A LIFE TENANT ISN’T EASY
DEAR BOB: When our father died about five years ago, his will left his house to his five children from his first marriage, including me. But his will gave his second wife a life estate in the house until she dies or remarries. She has not remarried, but she is living in the house with her live-in boyfriend, who might as well be her husband. They are not maintaining the house very well and it looks like a dump. It needs a new roof, but instead of installing a new one, she has put an ugly blue tarp on the roof. She failed to pay the property taxes. When I went to see an attorney to get her out, he notified her, and the boyfriend paid the property taxes. Is there anything we heirs can do before she destroys our inheritance? –Byron R.
DEAR BYRON: Getting rid of a life tenant is never easy. However, failure to pay the property taxes, or committing physical “waste,” are valid legal reasons to terminate a life estate.
From your description, the life tenant’s failure to repair or replace the roof is waste, which can be legal grounds to terminate the life estate.
If she fails to pay the property taxes again, and if she hasn’t fixed the roof, it might be the evidence you need to bring a legal action to terminate the life tenancy. Perhaps you should find a more aggressive real estate attorney.
The new Robert Bruss special report, “How to Sell Your House or Condo for Top Dollar With or Without a Real Estate Agent,” is now available for $5 from Robert Bruss, 251 Park Road, Burlingame, Calif., 94010. or by credit card at 1-800-736-1736 or instant Internet delivery at www.BobBruss.com. Questions for this column are welcome at either address.
(For more information on Bob Bruss publications, visit his
Real Estate Center).