Contract Performance
By Jim Palmer Jr.

Invariably, after real estate transactions are closed there are issues that surface where one of the principals is not happy because the contract was not fulfilled to their satisfaction.  It is usually a buyer who finds something missing that was supposed to stay or something was left behind that was supposed to be removed from the property.       

The first person they usually call is their real estate broker, probably because they have the mistaken perception that the broker is obligated to enforce the contract, when in reality the broker should only advise them to seek legal counsel.  In some ways that expectation could be considered a compliment to the broker because that trust has been well earned, but the perception that the broker can, or are obligated to resolve all but the simplest post-closing issues (like tracking down the keys) is misguided.

Brokers are easily lured into assuming the role of contract enforcer just because most are motivated to provide extraordinary customer service, even though succumbing to that urge is usually a legal minefield for real estate brokers.  It’s easy to see why they frequently cave to that pressure whenever they have to face the wrath of a disgruntled party. To resist the urge to please can be difficult for all but the most disciplined brokers.

In one recent case a buyer scheduled a walk-through of a home more than a week prior to the closing, instead of waiting until just prior to their signing to assure that things were clean, in good repair and that all of the appliances were present.  In their eagerness to just get the walk through over with, that buyer may have created a situation where they would close and then find out later that things were awry.

In another example, a buyer had agreed to close if the seller would clean up a very messy property and remove all of the debris prior to closing.  On the signing day the buyer decided to close even though the seller was still engaged in the process of removing mounds of debris.  The deal recorded and funded without the contingency being satisfied.  The buyer lost their power to enforce the seller’s performance of the contract the second they agreed to allow it to be funded.  Now that upset buyer is blaming brokers when it is the seller who has not performed according to the contract.