Q: Can we sue our realtor for neglecting to properly write and amend sellers contract to a buyer?
We sold our home March 2021. We approached the realtor who sold us our home about selling it. We told her the amount we needed to make from it and if she couldn't then we would go another route. She assured us she could. Here is the problem, she neglected to write in our contract that if the appraisal came back lower, that the buyer will need to make it up with cash. We told her we were willing to leave our like new 2 year old refrigerator and Ring security system if we were to get the amount we were asking for. We also asked her to ask them for a lease back and she refused without even asking them. Well, the appraisal came back 8 days before closing when all of our belongings were already being shipped half way across the country, over 50k less then what we were selling for and the offer we received. She offered up 1 point of her commission which didn't make a dent in losing 50k because she failed to write the contract correctly and we lost our fridge and alarm system to boot.
A: You are correct in assuming that it IS your written "Listing Agreement," which governs the outcome of your lawsuit. You are unfortunate also, as because you are limited to the "written document," between you and the RE Agent, you will NOT be permitted to offer testimony on what the agent did or did not put in their agreement with you, because the parole evidence rule, says that IF the parties have a written agreement, no parole (outside) evidence will be permitted or admitted, which is in conflict with the written agreement. So, what you are alleging was a failure to include, "she neglected to write in our contract that if the appraisal came back lower, that the buyer will need to make it up with cash" statement, would be in obvious conflict with the actual, written agreement which you had, the Court will not allow or consider you to utter this, in court. Same goes with any, other neglect she may have committed. The ONLY other argument you can make is that the Listing was actually not agreed to, at all and therefore, there was ONLY an oral contract for the sale of real property. However, even this argument will not avail you, since there can be NO sale of real property without a writing. Therefore, I am afraid that you should have take the 1% commission offered, because you are now, it appears in all respects, without any relief whatsoever. I'm sorry and can only offer my condolences because I'm sure this happens not infrequently. It is simply a lesson to all that when dealing with real property, be thoughtful and cognizant in all things and make sure that every jot and tittle is dealt with in writing.
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