Understanding Listing Agreements and Their Legal Implications
A listing agreement is a contract between a homeowner looking to sell their home and a real estate agent. In exchange for a commission, the listing agreement gives the agent permission to sell the home. The listing agreement typically specifies what the real estate agent can do concerning the home, such as advertising the place, showing it to parties who may be interested in buying it, and negotiating terms for its sale. A listing agreement also ties the seller into the deal by preventing them from starting the selling process again with a different agent until the contract expires. If the contract expires, or if the seller terminates it by mutual agreement with the real estate agent, the homeowner can begin the process of hiring a second agent to sell the home. The important factor to note is that when a homeowner signs a listing agreement, they’re telling the real estate market that they’re serious about selling their house through the designated agent, but not anyone else.
When lawyers are familiar with real estate agreements and how they’re organized, they can apply the same structural principles to understand a more applicable legal document such as a custody agreement. When we look at a custody agreement between divorcing parents, we see the same concept of permission given through signature. When two parents get divorced, they often share one or more children. In the divorce proceedings, parents often have to come to an agreement about where their children will live, and how much time each parent will spend with kids on what days. Parents agree to specific terms concerning their children’s custody, just as homeowners agree to specific terms concerning the sale of their homes. In a custody agreement, the parents give permission to each other to see their children on specific days and nights of the week. The custody agreement serves as a contract, just like a listing agreement, that both parents are legally bound by to follow.
The differences in a listing agreement and a custody agreement are somewhat obvious. Selling a home is a more straightforward process than raising a child. While parents may think their agreement is tight and could never be explained another way in a court of law, they may find themselves in a bind if their divorce lawyer had nothing to refer to. Most custody agreements follow the same structure coincidentally as a listing agreement, however, if custody agreements existed before real estate agreements, the option may not even exist to refer to them in divorce documents. As such, real estate documents have served as a guide for custody lawyers. By studying a listing agreement, which is a real estate agent’s version of a custody agreement for their real estate clients, lawyers can easily learn the function of a custody agreement.
When a listing agreement is used, the real estate agent must offer parties interested in the home the chance to make an offer. This offer will go to the seller, who will then choose to accept or deny the offer. If the offer is accepted, the seller and buyer can then draw up and sign a purchase and sale agreement, and the sale will move on to the closing stage. In the case of a custody agreement, each parent may need to make an offer to the other if they want to spend more time with their children. If one parent makes a formal proposal to the other due to an unforeseen circumstance, the other parent may have to choose the offer they like best, and refuse all further offers. By examining how a listing agreement works, lawyers can better understand how negotiations may work in a custody agreement.
When a real estate agent signs a listing agreement, they have three basic responsibilities: In a custody agreement, the parents also have a set of duties to each other and their children: Knowing the responsibilities that are typically assigned to sellers and buyers of homes can help lawyers re-arrange and apply rules to their clients when a child is involved. While no two custody agreements are the same, the provisions parents require in their agreements can be categorized as similar to a listing agreement.
When a homeowner grants a real estate agent a listing agreement, they often grant the broker permission to advertise the home, post a FOR SALE sign on the lawn, and hold open houses. Depending on the agreement, real estate agents may also get permission to negotiate with potential buyers and landlords for rentals. With a custody agreement, parents give each other permission to do some of the same things. Either parent may be granted the comprehensive listing agreement permissions to communicate with the other parent, transport their child, contact their school or daycare, and enroll or disenroll them from, or out of, these facilities. If the child has special needs, co-parents may require permission to transport them to medical appointments and communicate with healthcare providers on behalf of their child. These similarities help lawyers understand the legal jargon of a listing agreement, and apply the same principles to a custody agreement.
The most common misunderstanding in any legal agreement, including a custody agreement, is the meaning of some of the provisions that parents or lawyers have devoutly negotiated. While both parties have to sign mutual agreements before the courts will recognize them as legitimate, parents may still argue over interpretation. When a lawyer is drafted a custody agreement, they need to leave as little to interpretation as possible. In other words, parents may want to visit their children every Thursday night, but they may not mention anywhere in the agreement that they’re expecting their kids for dinner on those nights. As a result, parents may argue over the issue. However, when they specifically list their visitation days as Thursday nights, and whether parents are expected to care for their children during meal times, the contract is much clearer.
When people negotiate real estate agreements, they have to be straightforward and hammer out the specific details of their deal. For example, when they agree to a sale price, both parties understand the home is being sold for that price and not anything less. Similarly, when divorcing parents negotiate their custody agreements, they have to be direct and specific about the terms of their agreement. While it may be fair to say the family can share holidays evenly, parents should specifically state whether that means they’ll split Thanksgiving in half, or whether one parent will get Christmas Day and the other gets Christmas Eve. By being direct and addressing all the details of their contract, parents can avoid disputes that may arise over interpretation.
Real estate agreements have been around for hundreds of years, if not more, and their structure has been proven through consistent use. When lawyers are taught to examine and interpret real estate agreements, they’re getting information that has lasted decades, if not centuries. As such, it’s in the divorcing parents’ best interests to work with a Lawyer who knows how real estate agreements function, as a lawyer who can refer to a more reliable document can save them time and money in court.