Florida Real Estate Listing Agreements

Conditional vs. unconditional termination of a Florida Real Estate Listing Agreement

Real Estate Agent

Home sellers are not aware there are two ways of canceling a real estate listing agreement with their current listing agent.
I want to be clear that a Florida real estate brokerage using the Florida real estate listing agreements has no obligation to
do either.

Many agents will tell sellers they can cancel anytime during the listing presentation. First make sure it’s in writing separate from the listing agreement and second confirm if the cancelation will be conditional or unconditional.

Conditional vs. unconditional termination: What’s the difference?

By Joel Maxson

June 5, 2017 – Part 1 of this 3-part series explained that the Florida Realtors residential listing agreement requires the seller to get the broker’s consent to terminate; otherwise, the seller could be exposed to a claim for damages for possible breach of contract.

Today’s post (part 2) summarizes conditional and unconditional termination. Part 3 will cover the legal and ethical risks when a seller wants to discuss terminating another company’s listing agreement.

Based on numerous conversations with members who call into the Legal Hotline, brokers honor a seller’s request to terminate a listing agreement more often than not. When this happens and a broker uses the form Modification to Listing Agreement (MLA-5x), the broker is faced with two similar-sounding termination clauses that have very different meanings.

Conditional Termination
This termination fits a seller who no longer wants to sell the property. If this turns out not to be the case, full commission would be due if the seller transfers (signs a deed), contracts to transfer (signs a purchase and sale agreement), or contracts to lease the property or any interest in the property “from the date of the conditional termination through the actual Termination Date and Protection Period, if any.”

Unconditional Termination
This termination fits a seller who wants the option to continue marketing the property, with or without the help of another broker, after the termination. Under unconditional termination, both sides agree to powerful release language, as they release each other from “all obligations under the Agreement and … any and all actions arising from or related to the Agreement.”

Joel Maxson is Director of Member Legal Services


Florida Real Estate Listing Agreements

Florida Real Estate Listing Agreements

Exclusive Right Limited Service Listing Agreement: The seller gives the listing broker the right to put the property in the MLS and to offer compensation to cooperating brokers. The listing broker earns a flat fee up front in most cases and can also earn a fee at closing depending on the services the listing broker and seller agree to. This type listing is mainly for sellers who want to try and sell their home themselves to save on the listing side of the commission.

Exclusive Brokerage Listing Agreement: The seller authorizes the listing broker to sell the property and to offer cooperation to other agents, but reserves the right to sell the property themselves. In this listing agreement the listing broker earns a commission if he/she sells the home. The listing broker does not collect a fee up front. This type listing is mainly for sellers who want to try and sell their home themselves to save on the listing side of the commission.
In both the exclusive right limited service and exclusive brokerage listing agreements the seller is agreeing to pay a commission to a real estate licensee who brings a buyer.

Seller Beware: The seller needs to find out from any buyer who is interested in their property if their working with a real estate licensee who brought the seller’s property to the buyer’s attention. Bypassing an agent will not save on commissions and it’s this type of contract that the National Association of Realtors claims has the most procuring cause cases filed against the listing broker. If the listing broker looses the procuring cause case then the listing broker can bring a lawsuit against the seller for damages.

Florida Real Estate Listing Agreements

Seller Beware: If a buyer’s agent is involved in a FSBO transaction the buyer’s agent will need to give written notice to the seller clearly indicating that the buyer’s agent doesn’t represent them. In addition, the buyer’s agent must not provide advice or act in a manner to lead the sellers to believe that the agent is acting on their behalf and creating a dual agency.

Exclusive Right of Sale Listing Agreement
The seller grants to the listing broker the sole right to sell the property and the listing broker earns a commission no matter what brokerage brings the buyer. Both the listing and selling side of the transaction involve a licensed real estate agent.

The following listing brokerage relationships are offered under all the listing agreements: Transaction Broker, Single Agent, Non -representation, and Transition from single agent to transaction broker.