Common Pitfalls in a Florida Listing Agreement for Sellers

Your typical Florida listing agreement, commonly labeled an “Exclusive Right of Sale Listing Agreement,” is dangerous due to its relative simplicity and the fact that it can look like a standard agreement that isn’t customarily negotiated. However, the truth is that anything can be negotiated, and you are not required to accept and sign a contract as is in order to sell your home.

By far the single most dangerous piece of language in your typical Florida listing agreement is the section on commission, and how and when you as the seller will become liable for it. As you’ll see in the sample Florida listing agreement we’ll go over in the following article, this can entrap sellers to owe commission even if a sale doesn’t actually close.

Sample Florida listing agreement

Exclusive Right of Sale Listing Agreement

This Exclusive Right of Sale Listing Agreement (“Agreement”) is between Ann Windsor (“Seller”) and South Florida Realty (“Broker”).

1. Authority to Sell Property: Seller gives Broker the EXCLUSIVE RIGHT TO SELL the real and personal property (collectively “Property”) described below, at the price and terms described below, beginning May 10, 2021 and terminating at 11:59 p.m. on November 10, 2021 (“Termination Date”). Upon full execution of a contract for sale and purchase of the Property, all rights and obligations of this Agreement will automatically extend through the date of the actual closing of the sales contract. Seller and Broker acknowledge that this Agreement does not guarantee a sale. This Property will be offered to any person without regard to race, color, religion, sex, handicap, familial status, national origin, or any other factor protected by federal, state, or local law. Seller certifies and represents that she/he/it is legally entitled to convey the Property and all improvements.

This part of the typical Florida listing agreement explains that this is an exclusive right to sell listing agreement, meaning that the broker named in the agreement is the only broker that can list and market the property for sale. Furthermore, in this type of listing the broker will collect the commission specified later in the agreement regardless of how the buyer is procured. This means that if the seller’s neighbor friend contacts the seller directly and purchases the property, the broker will still get paid.

2. Description of Property:

(a) Street Address: 5000 Collins Avenue, Apt 2045, Miami Beach, FL 33156
Legal Description: Elixir South Beach Condominiums, Unit 2045, undivided 0.0245% interest in common elements, off rec 22455-3345
__ See Attachment ___________________

(b) Personal Property, including appliances: Furniture, drapes and applicances
__ See Attachment ___________________

(c) Occupancy:
Property __ is __ is not currently occupied by a tenant. If occupied, the lease term expires _______________.

3. Price and Terms: The property is offered for sale on the following terms or on other terms acceptable to Seller:

(a) Price: $5,000,000

(b) Financing Terms: __ Cash __ Conventional __ VA __ FHA __ Other (specify) ____
__ Seller Financing: Seller will hold a purchase money mortgage in the amount of $ ____
with the following terms: ____
__ Assumption of Existing Mortgage: Buyer may assume existing mortgage for $ ____ plus an assumption fee of $ ____. The mortgage is for a term of ____ years beginning in ____, at an interest rate of ____% __ fixed __ variable (describe) ____. Lender approval of assumption __ is required __ is not required __ unknown.
Notice to Seller: (1) You may remain liable for an assumed mortgage for a number of years after the Property is sold. Check with your lender to determine the extent of your liability. Seller will ensure that all mortgage payments and required escrow deposits are current at the time of closing and will convey the escrow deposit to the buyer at closing. (2) Extensive regulations affect Seller financed transactions. It is beyond the scope of a real estate licensee’s authority to determine whether the terms of your Seller financing agreement comply with all applicable laws or whether you must be registered and/or licensed as a loan originator before offering Seller financing. You are advised to consult with a legal or mortgage professional to make this determination.

(c) Seller Expenses: Seller will pay mortgage discount or other closing costs not to exceed ____% of the purchase price and any other expenses Seller agrees to pay in connection with a transaction.

It’s important to mutually agree on a listing price that the broker thinks is feasible in the current market, and where you don’t feel like you’ve left money on the table. Remember in this type of listing agreement, you may become liable for commission as long as a “ready, willing and able” buyer is found at this price which you’ve agreed is acceptable. You can also specify in this section whether you wish to sell only to a cash buyer, or whether you’d accept a buyer who needs a mortgage.

4. Broker Obligations: Broker agrees to make diligent and continued efforts to sell the Property in accordance with this Agreement until a sales contract is pending on the Property.

5. Multiple Listing Service: Placing the Property in a multiple listing service (the “MLS”) is beneficial to Seller because the Property will be exposed to a large number of potential buyers. As a MLS participant, Broker is obligated to enter the Property into the MLS within one (1) business day of marketing the Property to the public (see Paragraph 6(a)) or as necessary to comply with local MLS rule(s). This listing will be published accordingly in the MLS unless Seller directs Broker otherwise in writing. (See paragraph 6(b)(i)). Seller authorizes Broker to report to the MLS this listing information and price, terms, and financing information on any resulting sale for use by authorized Board / Association members and MLS participants and subscribers unless Seller directs Broker otherwise in writing.

6. Broker Authority: Seller authorizes Broker to:

(a) Market the Property to the Public (unless limited in Paragraph 6(b)(i) below):
(i) Public marketing includes, but is not limited to, flyers, yard signs, digital marketing on public facing websites, brokerage website displays (i.e. IDX or VOW), email blasts, multi-brokerage listing sharing networks and applications available to the general public.
(ii) Public marketing also includes marketing the Property to real estate agents outside Broker’s office.
(iii) Place appropriate transaction signs on the Property, except if Paragraph 6(b)(i) is checked below.
(iv) Use Seller’s name in connection with marketing or advertising the Property.
__ Display the Property on the Internet except the street address.

(b) Not Publicly Market to the Public/Seller Opt-Out:
(i) __ Seller does not authorize Broker to display the Property on the MLS.
(ii) Seller understands and acknowledges that if Seller checks option 6(b)(i), a For Sale sign will not be placed upon the Property and
(iii) Seller understands and acknowledges that if Seller checks option 6(b)(i), Broker will be limited to marketing the Property only to agents within Broker’s office.
____ Initials of Seller

(c) Obtain information relating to the present mortgage(s) on the Property.

(d) Provide objective comparative market analysis information to potential buyers.

Unless you are a celebrity who’s overly concerned about personal privacy, there’s absolutely no reason to deprive yourself of full marketing exposure by either not listing the property on the MLS, which means it’s effectively “off-market,” or not displaying your full address on 3rd party public websites.

(e) (Check if applicable) __ Use a lock box system to show and access the Property. A lock box does not ensure the Property’s security. Seller is advised to secure or remove valuables. Seller agrees that the lock box is for Seller’s benefit and releases Broker, persons working through Broker, and Broker’s local Realtor Board / Association from all liability and responsibility in connection with any damage or loss that occurs. __ Withhold verbal offers. __ Withhold all offers once Seller accepts a sales contract for the Property.

(f) Act as a transaction broker.

A lockbox system is really helpful for listing brokers as it potentially saves them from ever having to attend a showing where another Realtor (i.e. the buyer’s Realtor) will be present. They can simply provide the lockbox key combination to the buyer’s agent, typically through the MLS system, and wait for feedback. There’s no reason to have your listing agent withhold offers, ever.

(g) Virtual Office Websites: Some real estate brokerages offer real estate brokerage services online. These websites are referred to as Virtual Office Websites (“VOWs”). An automated estimate of market value or reviews and comments about a property may be displayed in conjunction with a property on some VOWs. Anyone who registers on a VOW may gain access to such automated valuations or comments and reviews about any property displayed on a VOW. Unless limited below, a VOW may display automated valuations or comments and reviews about this Property.
__ Seller does not authorize an automated estimate of the market value of the listing (or a hyperlink to such estimate) to be displayed in immediate conjunction with the listing of this Property.
__ Seller does not authorize third parties to write comments or reviews about the listing of the Property (or display a hyperlink to such comments or reviews) in immediate conjunction with the listing of this Property.

This outdated language is from a time when Realtors were desperately afraid of a new generation of discount brokers who operated largely online. There’s zero need to cave in to this scare tactic and reduce or limit your marketing exposure.

7. Seller Obligations: In consideration of Broker’s obligations, Seller agrees to:

(a) Cooperate with Broker in carrying out the purpose of this Agreement, including referring immediately to Broker all inquiries regarding the Property’s transfer, whether by purchase or any other means of transfer.

(b) Recognize Broker may be subject to additional MLS obligations and potential penalties for failure to comply with them.

(c) Provide Broker with keys to the Property and make the Property available for Broker to show during reasonable times.

(d) Inform Broker before leasing, mortgaging, or otherwise encumbering the Property.

(e) Indemnify Broker and hold Broker harmless from losses, damages, costs, and expenses of any nature, including attorney’s fees, and from liability to any person, that Broker incurs because of (1) Seller’s negligence, representations, misrepresentations, actions, or inactions; (2) the use of a lock box; (3) the existence of undisclosed material facts about the Property; or (4) a court or arbitration decision that a broker who was not compensated in connection with a transaction is entitled to compensation from Broker. This clause will survive Broker’s performance and the transfer of title.

(f) Perform any act reasonably necessary to comply with FIRPTA (Section 1445 of the Internal Revenue Code).

(g) Make all legally required disclosures, including all facts that materially affect the Property’s value and are not readily observable or known by the buyer. Seller certifies and represents that Seller knows of no such material facts (local government building code violations, unobservable defects, etc.) other than the following: ____
Seller will immediately inform Broker of any material facts that arise after signing this Agreement.

(h) Consult appropriate professionals for related legal, tax, property condition, environmental, foreign reporting requirements, and other specialized advice.

This section primary serves to cover and indemnify the listing broker from all types of liability. Especially interesting is the indemnification for use of the lock box, which in all honestly simply makes the listing Realtor’s job easier.

8. Compensation: Seller will compensate Broker as specified below for procuring a buyer who is ready, willing, and able to purchase the Property or any interest in the Property on the terms of this Agreement or on any other terms acceptable to Seller. Seller will pay Broker as follows (plus applicable sales tax):

(a) ____ % of the total purchase price plus $ ____ OR $ ____, no later than the date of closing specified in the sales contract. However, closing is not a prerequisite for Broker’s fee being earned.

(b) ____ ($ or %) of the consideration paid for an option, at the time an option is created. If the option is exercised, Seller will pay Broker the Paragraph 8(a) fee, less the amount Broker received under this subparagraph.

(c) ____ ($ or %) of gross lease value as a leasing fee, on the date Seller enters into a lease or agreement to lease, whichever is earlier. This fee is not due if the Property is or becomes the subject of a contract granting an exclusive right to lease the Property.

(d) Broker’s fee is due in the following circumstances: (1) If any interest in the Property is transferred, whether by sale, lease, exchange, governmental action, bankruptcy, or any other means of transfer, regardless of whether the buyer is secured by Seller, Broker, or any other person. (2) If Seller refuses or fails to sign an offer at the price and terms stated in this Agreement, defaults on an executed sales contract, or agrees with a buyer to cancel an executed sales contract. (3) If, within ____ days after Termination Date (“Protection Period”), Seller transfers or contracts to transfer the Property or any interest in the Property to any prospects with whom Seller, Broker, or any real estate licensee communicated regarding the Property before Termination Date. However, no fee will be due Broker if the Property is relisted after Termination Date and sold through another broker.

(e) Retained Deposits: As consideration for Broker’s services, Broker is entitled to receive ____% (50% if left blank) of all deposits that Seller retains as liquidated damages for a buyer’s default in a transaction, not to exceed the Paragraph 8(a) fee.

Essentially, the seller is liable to pay commission as long as a “ready, willing and able” buyer is found at the terms previously specified (i.e. price, financing etc.). The section clarifies that “closing is not a prerequisite for Broker’s fee being earned” and that the broker’s fee is due even if the seller decides to back out and not sell.

9. Cooperation with and Compensation to Other Brokers: Notice to Seller: The buyer’s broker, even if compensated by Seller or Broker, may represent the interests of the buyer. Broker’s office policy is to cooperate with all other brokers except when not in Seller’s best interest and to offer compensation in the amount of ____ % of the purchase price or $ ____ to a single agent for the buyer; ____% of the purchase price or $ ____ to a transaction broker for the buyer; and ____ % of the purchase price or $ ____ to a broker who has no brokerage relationship with the buyer.
__ None of the above. (If this is checked, the Property cannot be placed in the MLS.)

The typical Florida listing agreement is unique in that it specifies to sellers what the listing Realtor will co-broke, or split, in commission with the buyer’s Realtor, if any. In contrast, New York listing agreements often only mention generically that the listing broker may split commission with cooperating brokers per local MLS association rules.

10. Brokerage Relationship: Broker will act as a transaction broker. Broker will deal honestly and fairly; will account for all funds; will use skill, care, and diligence in the transaction; will disclose all known facts that materially affect the value of the residential property which are not readily observable to the buyer; will present all offers and counteroffers in a timely manner unless directed otherwise in writing; and will have limited confidentiality with Seller unless waived in writing.

11. Conditional Termination: At Seller’s request, Broker may agree to conditionally terminate this Agreement. If Broker agrees to conditional termination, Seller must sign a withdrawal agreement, reimburse Broker for all direct expenses incurred in marketing the Property, and pay a cancellation fee of $ ____ plus applicable sales tax. Broker may void the conditional termination, and Seller will pay the fee stated in Paragraph 8(a) less the cancellation fee if Seller transfers or contracts to transfer the Property or any interest in the Property during the time period from the date of conditional termination to Termination Date and Protection Period, if applicable.

It’s important to note here that early termination is based on mutual consent, i.e. the listing Realtor has to agree to let you out of the contract early. Also unique to a Florida listing agreement is the request for the seller to reimburse the listing Realtor for all direct expenses plus potentially an early termination fee.

12. Dispute Resolution: This Agreement will be construed under Florida law. All controversies, claims, and other matters in question between the parties arising out of or relating to this Agreement or the breach thereof will be settled by first attempting mediation under the rules of the American Mediation Association or other mediator agreed upon by the parties. If litigation arises out of this Agreement, the prevailing party will be entitled to recover reasonable attorney’s fees and costs, unless the parties agree that disputes will be settled by arbitration as follows:

Arbitration: By initialing in the space provided, Seller (____), Sales Associate (____), and Broker (____) agree that disputes not resolved by mediation will be settled by neutral binding arbitration in the county in which the Property is located in accordance with the rules of the American Arbitration Association or other arbitrator agreed upon by the parties. Each party to any arbitration (or litigation to enforce the arbitration provision of this Agreement or an arbitration award) will pay its own fees, costs, and expenses, including attorney’s fees, and will equally split the arbitrator’s fees and administrative fees of arbitration.

13. Miscellaneous: This Agreement is binding on Seller’s and Broker’s heirs, personal representatives, administrators, successors, and assigns. Broker may assign this Agreement to another listing office. This Agreement is the entire agreement between Seller and Broker. No prior or present agreements or representations will be binding on Seller or Broker unless included in this Agreement. Electronic signatures are acceptable and will be binding. Signatures, initials, and modifications communicated by facsimile will be considered as originals. The term “buyer” as used in this Agreement includes buyers, tenants, exchangors, optionees, and other categories of potential or actual transferees.

14. Additional Terms: In this free-form section, the listing Realtor may put in language informing the seller that the listing brokerage will collect an additional transaction fee of several hundred dollars for “closing services.” This section will often also state a specific number of days, commonly 10, where the listing Realtor won’t market the property after the effective date of the agreement in order to provide time to prepare the marketing materials. In reality, this time is often spent trying to find a direct buyer before having to share the listing on the MLS. This section may also state a slight discount, i.e. 5% vs 6%, in the event that a direct buyer is found and the listing brokerage is able to collect both sides of the commission.

Seller’s Signature: ____        Date: ____
Telephone: ____        Fax: ____
Email: ____
Address: ____

Authorized Sales Associate or Broker: ____        Date: ____
Brokerage Firm Name: ____        Telephone: ____
Address: ____

Copy returned to Seller on ____ by __ email __ fax __ mail __ personal delivery.

Seller (_____) and Broker/Sales Associate (_____) acknowledge receipt of a copy of this page.

Besides noting which state’s laws will govern, meaning if you get caught in a protracted court case where you may physically have to go to court, check out the additional terms section for anything else your listing Realtor may want to negotiate into the contract. Ready to sell? Check out our article on Florida seller closing costs or play around with our interactive Florida seller closing cost calculator.
Disclosure: Hauseit® and its affiliates do not provide tax, legal, financial or accounting advice. This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, tax, legal, financial or accounting advice. No representation, guarantee or warranty of any kind is made regarding the completeness or accuracy of information provided.

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