Brokers are often concerned that an unscrupulous seller might try to avoid a commission until the list expires before entering into a contract with a potential buyer introduced into the property for the duration of the listing. For this reason, most listing agreements provide that the seller is required to pay his commission to the broker if, at the expiry of the list, the seller enters into a contract with a buyer who was introduced into the property while the offer was in effect. While such a provision is reasonable in the concept, the seller must be sure that it is appropriate when applied. Too often, clients hire a lawyer for the first time in a commercial real estate transaction when they wish to make an offer to purchase a property or after receiving an offer to sell real estate. Nevertheless, there is an important step in this process, which is often overlooked – the revision and negotiation of the list agreement. Whether a lawyer represents the owner of the property, the buyer of the property or the broker/seller who lists the property for sale, clients must be informed of the essential rights and obligations established and exposed in the listing agreement. List agreements are not boiler platform agreements and can be negotiated in many ways. They must have legal requirements to be enforceable. However, clients often sign the list contract without verification or negotiation. Keep in mind that property owners are not the only party to benefit from a thorough audit and understanding of the list agreement; Commercial real estate agents and sellers will also benefit. Although the article focuses on the representation of the seller or broker, the consultant should be aware that many of the concepts discussed here may also apply to buyer/broker agreements. The seller does not want to argue with the broker over whether the seller foiled the real estate agent`s efforts to sell the property, because the seller arbitrarily refused a particular buyer or offer.

In order to avoid such taxation, the listing agreement should expressly provide that the seller retains absolute control of the process of selecting a potential buyer, negotiates with that buyer and concludes or not (subject, of course, to state and federal anti-discrimination laws, etc.). Some list agreements contain a language that could be read to create an unspoken obligation for the seller to accept an offer if he fulfills the list price or if it is acting in an economically reasonable manner during the sales process.