Commission double-take

Ok, for those of you thinking from the title that I’ll be going back to the subject of dual agency and taking a seller and selling side of a commission this is about something else. What I’ve got a question about as well as a big concern right now is that I just got mutual acceptance on a deal for a client and I’ve just noticed that the listing agent has changed the commission on the listing data. It was at 3% on the day my clients saw the house and now, tonight when we got MA, it is at 2.5%. Anyone have an idea how the local MLS views this kind of thing? I have a feeling that she changed it just because an offer finally came in (it was full price on a big price tag) and as of 01/06/2007 it was at 3%.

[photopress:washer_dryer_photo.jpg,full,alignright]Considering the listing agent screwed up and had posted a washer/dryer as part of the listing also and then she couldn’t work that problem out with her client (happens to be her father-in-law) I was planning on using part of the commission to buy a set for my clients. That may be shot now with the reduction although (the set they want is $2600) [photopress:pennies.jpg,full,alignleft] but I’m planning on pointing out the change and requesting that she pay the amount she originally noted and submitting the printed copy of the listing as my documentation with the disbursement form. The MLS rules as I see them state that the “commission shall be paid as designated in the listing (or any change thereto).” Which this could mean that I’m hosed the money, BUT, I can’t tell if she changed it before or after we got mutual acceptance – which I find to be a possible ethical violation if it was the agent’s choosing. Furthermore, which rate would apply if it was changed after the fact? The same section of the rules states “consent required to change other member’s commission”. I’m pretty sure the seller or the listing agent decided to drop it when faced with an offer and for no other reason than to save the money even though this has been the SOC for months – this place had been on market for over 100 days. Anyone got a clue on this one?

18 thoughts on “Commission double-take

  1. The new amount takes effect when it is posted in the mls.

    I would think if the agent had it signed by the seller, but didn’t post it in a timely manner, the broker would be responsible to pay, but not the seller. So the additonal amount could come fromt the Seller’s Agent’s fee and not from the seller.

  2. In my neck of the woods, the MLS is a contract to pay the cooperating broker. If on the day you showed the home the commission offered was 3%, you get 3%, regardless of what the MLS says today. If there is a discrepancy between the listing contract and the MLS, that would be the listing agent’s problem as Ardell points out.

  3. Do you folks have access to an archive report up there? Down here, we’d be able to see when the change was entered into the system.

    The co-broke here also does not need client approval.

  4. First time I’ve heard of this. Agree with Jonathan that you may be able to track the commission change by viewing the Property History. Going forward, if you use Form 22D, Optional Clauses, it may be valuable for all of us to complete Section 8, Selling Brokers Commission, even though the commission was stated, then changed, in the listing. Did the listing agent provide any reason/timing of the change?

  5. I recently had a similar situation when the agent’s listing agreement expired shortly after I showed the property under the old listing agreement (3% co-broke). When we went to submit the offer, the new listing agreement was in effect but the listing agent still must honor the original co-broke because I first showed the property under that offer. Luckily, the agent didn’t try to pull anything with me but I always keep a copy of the mls sheet for every property I show for this reason, showing the co-broke. If you have the original printout with the date & co-broke, that should be sufficient to prove your case.

  6. Reba ~
    You should be able to find out when the change was posted by checking with MLS.
    I would also get a copy of the change order to see when it was signed.
    Then, take the listing agent to task.
    Regardless, it sucks.

  7. Thanks for the feedback.
    Jessica, like you I print out all of the listings that I show clients as well so I have it documented.
    John, using Form 22D as it is written now, is for those cases when there is no listing agreement in place.
    Jonathan, the MLS doesn’t show those kinds of property history changes. It was the first thing I checked.
    Phil, the agent told me her seller discussed the listing fee as they were going over my client’s offer. She said he decided to change it when he “finally” figured out how much the commission was worth. Personally, I have another reason that I believe this happened but I can’t really share it here without breaching some confidential terms of the deal – so I won’t.

  8. So, this deal closed but there were some hiccups along the way with the agent’s father-in-law threatening to not close if the commission was changed back to the original. That being said I am planning on taking this to arbitration once I get back from helping out my parents for a couple of weeks after this recent car accident. I’ll write more on it once that is complete so that we all can learn from it.


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