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First-time sellers: Here’s when you will pay double commission

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Q

Hi, I have sold my property through an estate agent with conditions attached that the buyer needed to sell his property. The term to fulfil the suspensive conditions and an extension on that has now expired.

The buyer is still very much interested in the property and we would ideally like to walk away from the initial estate agent and re-sign the agreement with another agent once the buyer has sold his property.

I am quite willing to pay whoever the commission, but the buyer wants to rather sign the new agreement with another agent.

I am not fussed either way as the original agent does not even respond to emails/phone calls or smses. I just do not want to get into trouble and pay double commission.

Is this allowed or are we bound to the initial agent for life? – Dries

A

Hi Dries, given that you are “not fussed” with the current estate agent, I am of the view that you should simply insist on adherence to the original agreement (subject to the extension of the fulfillment the suspensive conditions of course).

In this regard, I am of the view that should you agree to signing a new deed of sale and appointing a new agent, you will invariably be met with a claim for payment of commission on the part of the original agent. Moreover, it is likely that the current agent will be successful in prosecuting his claim for commission, as it appears that he would, for all intents and purposes, be deemed to be the effective cause of the sale and therefore be entitled to claim payment of his commission.

In my view, the estate agent (and his conduct) ought not be the concern of the buyer, as it is the seller’s prerogative to appoint an estate agent, and it is the seller who is responsible to pay the agent’s commission. Thus, if you as the seller are not fussed with the agent’s conduct, then this is really a non-issue in relation to the sale.

In the circumstances, I would advise you to refuse the buyer’s request for the appointment of a new agent, so as to avoid a potential claim for commission on the part of the current agent, and to avoid being held liable for a double commission. first time seller HT with logo


First-time seller? Email your question to david@hometimes.co.za and we’ll be sure to get back to you


Who is Marlon Shevelew?

Marlon Shevelew, director of Marlon Shevelew and Associates.

Marlon Shevelew, director of Marlon Shevelew and Associates.

Marlon Shevelew is the director of Marlon Shevelew and Associates Inc. a law firm specialising in rental property, contractual, consumer and company law. The firm is the recipient of more than 45 international property law awards. Marlon is current author of PayProp’s rental documentation and preferred rental property attorney to the Institute of Estate Agents South Africa (IEASA), the Rental Housing Tribunal Western Cape and presenter of the Advanced Residential Property Law Seminar endorsed by the University of Cape Town. Marlon has featured on Cape Talk 567 and Property Matters on DStv, contributes as a guest expert to several property publications and was invited by Juta to write a book on rental property law, by LexisNexis Butterworths to edit its forms and precedents on rental property law and, on no less than three occasions, was invited by the Law Society of South Africa to lecture and train candidate attorneys and attorneys on rental property law. Marlon also created the unique Rental Retainer ClubRentDoc  and LevyDoc which offers clients affordable legal fees for rental property and sectional title related matters. Marlon is contactable on marlon@marlonshevelew.co.za anytime for more information on these services.

david.steynberg@gmail.com

David A Steynberg, managing editor and director of HomeTimes, has more than 10 years of experience as both a journalist and editor, having headed up Business Day’s HomeFront supplement, SAPOA’s range of four printed titles, digimags Asset in Africa and the South African Planning Institute’s official title, Planning Africa, as well as B2B titles, Building Africa and Water, Sewage & Effluent magazines. He began his career at Farmer’s Weekly magazine before moving on to People Magazine where he was awarded two Excellence Awards for Best Real Life feature as well as Writer of the Year runner-up. He is also a past fellow of the International Women’s Media Foundation.

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