QUESTION
Can a tenant-in-common owner (51% owner) list the whole property for sale?
Asked on Dec 14th, 2013 on Estate Planning - Michigan
More details to this question:
Can a tenant-in-common owner ( 51% owner) list the whole property for sale (not just a 51% interest in the property) with a R.E .agent without the signatures OR consent of the other two TIC owners? The RE agent was informed of the situation shortly after or at the time of the listing and was aware of the situation when he called one of the TICs to come into his office to sign a listing agreement. The agent is now trying to hold the listing as valid and binding on all parties. My view is that since the listing was representing the whole property not just a 51% interest that anything relating to the property listing agreement is invalid. Can the agent and/ or his broker be held liable for any damages from lost opportunities from prospective buyers as he tries to tie up the property and hold it "hostage" for a commission on its eventual sale? We feel that due to the nature of the property (there is substantial developer interest in the property which does not require a listing or broker/agent involvement). Thank you for your response.
14 ANSWERS
Edwin K. Niles
No. One may need to file a partition action to get a court order for sale.
Answered on Dec 20th, 2013 at 10:15 PM
David Thomson Egli
A tenant-in-common owner only has the right to control his interest in the property, not another owner's interest. If a tenant-in-common didn't sign the listing agreement, he is not bound by the terms of the listing agreement. If the tenant-in-common did sign the listing agreement, he would be bound by its terms. In that case, one would have to review the terms to determine if a sale to the prospective developer would result in the agent being entitled to any commission on the portion or if the actions of the agent constituted a breach.
Answered on Dec 17th, 2013 at 11:59 PM
The original listing was invalid as the part owner fan only sell a part ownership in the property [part ownership means you can only do things with the agreement of the other part owners, which is why it is headache]. It might be valid as to selling the 51% portion, although agreements to get a commission for the sale of property must be in writing to be enforceable unless there is substantial performance. The agreement by the second owner could be voided on the basis that he misunderstood what the true, legal situation was. In any case, no one will buy the property for any where close to a reasonable value if one of the partners is not agreeable to the deal. So you can hold everything up. It probably is worthwhile for all three partners to go to a real estate attorney to find out where each one stands. The attorney might say that he can not represent all three by speaking to each as that is a conflict of interest, so you probably would have to go yourself and get a written opinion to show to the other partners and broker. The broker seems dishonest so you should drop him and probably report him to the state agency regulating brokers.
Answered on Dec 17th, 2013 at 11:59 PM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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The majority owner (M) may have committed fraud on the agent (A). Probably, A is entitled to a commission, even though M cannot sell. If a buyer (B) makes an asking price offer, B may also have a case against M.
Answered on Dec 17th, 2013 at 11:58 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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You are advised to obtain the assistance of a real estate litigation lawyer to examine the documents and put the broker in his place, as a listing agreement covering all of the interests in the property needs the signatures of each title holder.
Answered on Dec 17th, 2013 at 11:58 PM
The tenant-in-common owner should obtain a Partition order from the court to be able to do this legally. The Partition would sever the tenancy, and allow one party to list the property.
Answered on Dec 17th, 2013 at 11:58 PM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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Tell the agent to pound sand. You are not signing the listing agreement and if he or she does anything to prevent the sale of the property, you will hold him or her and the broker liable for the damages. It might sound better if it came in the form of a letter from an attorney, but that is the gist of it.
Answered on Dec 17th, 2013 at 11:57 PM
Commercial Attorney serving Chicago, IL
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Ashcraft & Ashcraft, Ltd.
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Is there a partnership agreement between the various owners of the partial interests in the property? Can the 51% owner maintain that there is an agreement to allow him to negotiate on behalf of the others? Is there an agreement between the owners such that the 51% owner can require the other owners to enter into a contract to sell the property? The owner of an undivided interest in the real estate can only sell what he or she owns. He or she cannot sell the entire parcel because they do not own the entire parcel. The broker would be hard pressed to assess any commission against that portion of the purchase price relating to the other owners. The broker cannot obligate the other owners to pay any portion of the commission without their agreement. The other owners do not have to agree to any sale negotiated by the majority owner of the interest in the property.
Answered on Dec 17th, 2013 at 11:57 PM
Tenant in common owner can sell only his interest, not the interest of the other TIC owners without their consent. The real estate agent should not make representations that he can sell more than the interests he has been retained to sell.
Answered on Dec 17th, 2013 at 11:57 PM
Business Law Attorney serving Bingham Farms, MI
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James T. Weiner, P.C.
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A tenant in common, whether 51% or not, cannot list the property for sale.. but the tenant in common can list his 51% for sale.. subject to the other parties interest. so the real estate agent probably has the right to get a commission on the 51% that the one party owns.
Answered on Dec 17th, 2013 at 11:57 PM
2 Awards
Yes but you will need to file for a partition action and get a court order if the other owner will not sell.
Answered on Dec 17th, 2013 at 11:57 PM
If the majority owner sells the property without prior approval of the other owners, he is required to pay them the equivalent percentage of the purchase price as they own in the property.
Answered on Dec 17th, 2013 at 11:56 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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I would say no. The tenant in common can only sell what they have, which is a part of the property. A judge can order a partition sale, which could force the parties to sell or be bought out. But that does not seem to be what happened.
Answered on Dec 17th, 2013 at 11:56 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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See an attorney, there are many issues. The deeds and any other documents must be examined prior to an opinion being formed.
Answered on Dec 17th, 2013 at 11:56 PM