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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

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Broker advises Seller and Buyer to verify all facts

Verify Property Information

Broker advises Seller and Buyer to verify all facts

Professional Advice; Broker Liability: Broker advises Seller and Buyer to verify all facts and representations that are important to them and to consult an appropriate professional for legal advice (for example, interpreting contracts, determining the effect of laws on the Property and transaction, status of title, foreign investor reporting requirements, the effect of property lying partially or totally seaward of the coastal construction control line, etc.) and for tax, property condition, environmental, and other specialized advice. Buyer acknowledges that Broker does not reside in the Property and that all representations (oral, written, or otherwise) by Broker are based on Seller representations or public records. Buyer agrees to rely solely on Seller, professional inspectors, and governmental agencies for verification of the Property condition, square footage, and facts that materially affect Property value.

 

The above paragraph is in all Florida Realtor purchase contracts and really addresses both the seller and the buyer.  It’s in the best interest of the seller to verify what is being published about their home when listed for sale.  The seller does not want their home misrepresented to the public and typing errors can occur when placed in multiple listing service.  

It’s in the best interest of the buyer to hire the appropriate professionals to verify the following on the property:

A survey can provide the properties legal description, boundary lines, easements, zoning, flood zones, utility lines, buildings, fences, ingress & egress, and encroachments. 

A home inspection can provide you the condition of the home, appliances, and mechanics.  However, a home inspection does not look inside HVAC units nor can it tell you if you have water leaks under the slab.There are separate tests for radon gas, mold, and lead paint in addition to a regular home inspection.

Test the water when there is a well on the property.   Have a professional septic company look at the septic system

An appraisal will provide the buyer an opinion of value and the gross living sq. ft. of the home.  

Use a environmental consultant if buying a large property or commercial property as there may be a hazard waste liability on the property

Protect your investment with A Title search and title insurance policy will discover recorded liens on the property, who has the right to sell the property, history of ownership, tax search, unsatisfied judgements against the property, 

Homeowner Associations –  ask questions directly to the homeowner’s association especially when it comes to pets, commercial vehicles and sheds or better yet get a copy of the current homeowner association covenants, conditions, restrictions manual and the bylaws manual. 

The bylaws govern how the HOA operates and contain the information needed to run the HOA as a business.

The CC&R are the rules of the neighborhood.