Q. I have an exclusive right-to-sell agreement with my seller who is going through a divorce. Her husband, who is also a co-owner of the property does not want to sell the property and refuses to sign the listing agreement. What should I do?
A. All owners should agree, at least verbally, to the terms of the listing agreement. Technically, the statute of frauds does not apply to contracts for brokerage services and therefore listing agreements may be entered into verbally. It is recommended, however, that these agreements be made in writing, in fact, most Multiple Listing Services require it. [The Berkshire MLS does!] Where the listing agreement is reduced to writing, the best practice is to have all owners sign. That is true whether it is a tenancy in common, joint tenancy with right of survivorship or tenancy by the entirety (i.e. husband and wife own). Without agreement from the owner (as proven via a signed agreement), an owner could claim that the broker lacked authority to sell and could claim that the non-signing owner does not have to pay the broker’s fee. If the broker believes that the person who signed had authority to sell and, as a result, did not obtain agreement from one or more other owners, the broker should be able to collect the full broker’s fee from the individual who signed, even if another person who was not known to the broker to also have an ownership interest did not sign the listing.
If the broker is aware that all owners have not agreed to list the property, there is little the broker can do, but encourage them to reach agreement. If the deadlock occurs in a divorce situation, the attorney for one of the spouses can ask the Probate Court for an order that allows one spouse to list the property with a broker. Court approval of an offer will generally be required, since that will give the other spouse an opportunity to object.