The sale has fallen through – do I have to pay commission?

Prior to listing your property for sale with an agent ensure the fine print is reviewed. Conveyancing is an exciting time, but don’t get caught out by a purchaser that doesn’t complete a contract.

Real Estate agents are heavily regulated and the vast majority are honourable and professional operators. Many agency agreements, do however, have a clause in them that requires a vendor to pay a commission even when a purchase falls through. Thankfully, in our experience most purchasers do complete the conveyance in accordance with the terms of the contract and the conveyancing process proceeds in an efficient and effective manner.

ClickLaw suggests the following tips:

  • Be sure to check the fine print in the agency agreement. From 1 March 2015, any agency agreement that includes a term that a commission is payable even if the sale of the property is not completed must have the following statement:

WARNING: The term immediately above provides that a commission is payable under this agreement even if the sale of the property is not completed.

  • If you are uncomfortable with such a clause, ask your agent to delete it. In our experience, most agents will agree to delete such a clause from an agency agreement.
  • Feel free to run the agency agreement by your lawyer prior to signing. An experienced property or conveyancing lawyer will be familiar with the contents of an agency agreement and be able to provide you with efficient pragmatic advice.
  • NSW Fair Trading is a fruitful source of information in addition to your lawyer.