It could be that you are involved very early in the separation and the separating couple have an agreement in place about a sale that is happening further down the track. You may even be faced with some resistance by one person who is reluctant to sell the property. This can make it tricky for real estate agents because you can be caught in the crossfire at times.
If properties are jointly owned in both names, you are often having to deal with two separate people and need to get agreements about things like how much a property is listed for, what the sale price is, and whether one or both of them are prepared to accept offers. This can be a real problem if you are effectively trying to work between two people who may not share the same view or be communicating effectively with each other or even communicating at all.
Selling a property during a divorce looks quite different from the situation where you are acting for a couple who are happily married and are likely to be of the same view about things. While I am a family lawyer, I am very aware of just how tricky it can be for a real estate agent to sell a home during a divorce. There is often an increase in the amount of communication you, as an agent, need to do. You need to be aware of the potential issues that can arise in these circumstances. You want to be able to help both people and ensure they feel heard, but also protect yourself as you go through the process.
Acknowledge these sellers needs are different from other sellers
The key part of selling a home for a separating couple is acknowledging your clients may have different needs and one or the other may have a vested interest in things progressing a certain way. When people have separated, it may be that one person is further along the path of accepting that a property needs to be sold or there might be some history about how they have come to that agreement. So it is about being aware there may be resistance and then getting an early understanding of where each person is at and how they have come to an agreement around the sale of the property.
Try to ask questions early about what each client’s expectations are regarding how you approach things. From the outset explore what the resistance points might be, acknowledge those points and get information that might assist you to make the process go more smoothly. You will need to keep in mind that you have obligations where properties are jointly owned to be communicating with both parties. Both parties want to feel that they are receiving the same level of communication as the other person is getting.
Whether it is the case or not, there will be times where clients feel they are receiving less favour or communication. Or one client might not feel that the other person is presenting the property in the best possible way or allowing access for inspections. There can also be a disconnect between what one party believes the property is worth versus what the other person thinks it’s worth, creating an inability to get consensus on a list price or how the property should be marketed.
Know if a consent order or financial agreement is in place
As an agent, it can be helpful to know early in your engagement with a separated couple as to whether there is a legal agreement that has been formalised or if a consent order is in place that outlines the mechanisms for the sale. If people have already reached an agreement, or are at the tail end of it, this document serves as a blueprint as to how the sale should occur. Being aware as to whether they are at that stage or not, and getting a copy of any order, can make your job as the agent easier.
These formalised agreements are designed to help minimise disputes between the two parties. Typically there would be a series of clauses that are set up as default or an automatic consequence that would apply if the husband and wife cannot agree. These orders include details such as which agent should be used, what the list price should be, whether there should be periodic reductions in price and if there are arrangements for the property to go to auction in the event that the initial process doesn’t go to plan. Often where there are already lawyers are involved assisting one or both parties, a copy of the Orders may be provided to you upfront.
For you, it is a matter of being aware of whether such a document exists and this may provide you with some assistance or guidance about how to navigate issues that arise. If no such agreement is in place and each party are in conflict this could be a good opportunity for you to suggest that they each seek out family law support.
Overcome stumbling blocks with the support of family lawyers
Suggesting to your clients to seek out the support of their family lawyer may help to resolve some of the impasses. If clients are not yet at that final stage of formalising an agreement, this time can be used to work out how to market the home, or how to reach agreements on the sale of the property.
Sometimes it might be that there is an offer on the table but one person is refusing to co-sign so there are options for that person to get advice about what action to take at that point. The difficulty with bringing up these kinds of concerns when an offer is on the table is that issues cannot always be resolved quickly. So, being proactive at an early stage about where your clients are at in the process will hopefully alleviate some of those issues that often come up later in the process. But there are times as an agent where these types of sales will require you to be more patient about the process, than a more typical or straightforward sale.
Be transparent throughout the process
When you are put in the middle of two people with different options it can be hard to not be pulled into the conflict. If there are differing opinions between the parties, it helps to be transparent throughout the process by providing information to each party. This could be as simple as sending joint emails so that everyone is on the same page and knows what is happening and why it is necessary.
This helps you to minimise the time taken dealing with duplicate communications and make things more efficient, creating the best chance of the sale processing smoothly. What is likely however is that you will be communicating more with these types of sellers than with your typical seller.
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