Brian, I have a listing where the couple is divorcing. They hate each other. I can’t get them to agree on a thing. What are my obligations?

Even though you may feel sympathetic to one party, and believe the other party is simply being an obstructionist, please be reminded that both of them are clients to whom you owe a duty.  Read on.

 

I am frequently asked, and was last week, what a listing agent should do when she finds herself representing an estranged husband and wife with at least one of whom hating the other so much that all you get is one obstruction and objection after another, making it nearly impossible, if not impossible, to actually get the house sold.  Listing agents want to know their legal obligations and get some practical advice.

 

First, both are your clients.  Neither the law in general nor VREB in particular provide for a different duty of care to nice clients versus mean clients.  You don’t really need me to tell you that.  But you must remember it because it is all too easy to fall into the trap of dealing with the nice person one way and the mean one another way.  You simply cannot start providing different advice to one client for whom you feel some sympathy, or taking sides in a marital dispute.  Do not, I repeat do not, send emails to your nice client saying “I know this isn’t your fault, your ex is such a jerk” or send an email to only one of them providing advice – always send any such advice emails to both.  The important thing to understand, I think, and guide you is that this situation is really no different than if you had a single client who wouldn’t follow your advice, etc. and you should proceed accordingly.

 

But you are not without recourse and leverage.  If one of your sellers is not cooperating and abiding by the terms of the listing agreement (or to the contract if one has been signed) then you can threaten the obnoxious spouse with a suit for commission.  As a reminder, you must get Donna, Elaine, and/or Liz involved before doing so, and they will involve me if they think it necessary.  Also, depending on the posture f the case, you can get the divorce attorneys involved and they might bring a contempt action if necessary.   After all, unlike your duty as an agent you do get to choose which party you sue in that lawsuit.  So, in summary, simply work with both of them the best you can, being mindful of that fact that both are clients, and then use the leverage you have to force the crazy spouse to cooperate.  

 

But this is way too far down the road to start trying to solve the problem, and threatening lawsuits (and filing them) isn’t the most productive use of your time.  There are proactive steps you can take at the outset of any such listing to avoid such problems, which I will discuss and provide some forms at my next Lytle Law Lunch and Learn on Divorce (general information for my staff and consumers, with an emphasis on real estate related issues for agents).  Please mark it on your calendar for October 29 at noon in the Newport News training room if you would like to attend, and email Lara at the law office so we have a handout for you.