July 20, 2025

Lessons from a Commission Tug-of-War: Ask, Document, Protect

A vague or expired buyer agency agreement can cause legal chaos—protect yourself by documenting everything and asking the right questions upfront.

Picture this: You’re hosting an open house. A buyer walks in, falls in love with the property, and wants to write an offer. You ask the right question: “Are you working with another agent under a buyer agreement?” Their answer? “I don’t think so. I worked with someone a while ago, but I haven’t seen anything with them lately.”

Sound familiar?

It’s a situation more agents are encountering since the rise of buyer agency agreements, and it can quickly become a legal and ethical quagmire.

The Scenario

That’s exactly what happened to one of our POWER AGENTS®. She did everything right—asked about buyer representation, gave the prospect time to double-check, and even waited overnight before writing up the offer to make sure. The next day, the buyer confirmed they had no agreement, couldn’t find any paperwork, and wanted to move forward. So, Marcy wrote the offer. It was accepted, the home passed inspections, the appraisal came in fine, and everything was sailing toward the mortgage commitment.

Then, out of the blue, another agent called.

This agent claimed she had a signed buyer agency agreement with the buyer—and that she was entitled to the entire commission for the sale. Her evidence? She had worked with the buyers previously and saw they had listed their current home, which tipped her off that they must have bought something. According to her, the agreement she had signed with the buyers stated that it was in effect until they “found a home.”

Now, our POWER AGENT®’s broker is involved, and the legal department is suggesting the prior agreement might override Marcy’s, depending on its enforceability. Understandably, she’s worried.

So, let’s break this down for everyone.

Darryl’s Take: Who Owes What?

“Let me start by saying this: I’m not an attorney, but I’ve been around long enough—and coached enough agents—to know how these things typically play out. And I’d bet my bottom dollar I’m right about this next point…

If you are not a party to a contract, you are not bound by it.”

The buyer agency agreement in question was between the buyer and the other agent. You, as the second agent, are not named in that contract. That means, legally, you don’t owe that other agent anything.

Now, your buyer might owe them something, depending on the agreement. But that’s not your burden to carry, and it sure doesn’t mean the other agent is automatically entitled to your commission.

The Problem With “Open-Ended” Agreements

From what our POWER AGENT® shared, this so-called agreement said it was in effect “until the buyer found a home.” That’s dangerously vague and—frankly—probably unenforceable. You can’t have a legally binding agreement that ties a buyer to an agent indefinitely. It’s like saying, “You’re mine until the end of time.”

Not only is that absurd, but it could potentially violate real estate licensing laws. If you’re ever in this situation, get a copy of that agreement and have it reviewed—not just by your broker’s legal team, but by a contract attorney, not just a real estate one. This is a contract issue first and foremost.

Also consider sending it to your Department of Licensing and asking: Is this even enforceable? That alone could protect you—and help you educate your buyers moving forward.

What You Can Do to Protect Yourself

Our agent did a lot of things right. She asked the question. She gave the buyer time to look for documentation. That’s due diligence. That aligns with the NAR Code of Ethics, which states agents should make a reasonable effort to determine whether a buyer is already in a fiduciary relationship with another licensee.

But here’s where we’d coach you to go one step further next time: when a buyer says they’re not under contract, put that in writing. Have a clause in your agreement that says something like: “Buyer has been asked whether they have an existing buyer agency agreement with another agent. Buyer has confirmed they do not.”

That way, if anything comes up later, you have documentation that they disclosed—incorrectly or not—that they were not under contract. This strengthens your position significantly.

Navigating the Fallout

If the prior agent insists on being paid, here’s Darryl’s coaching:

Ask for a copy of the agreement. They want to be compensated? Then they need to produce the agreement. If they won’t send it, you can’t help them. Period.
Let the buyer handle it. Your fee is secured by the transaction you put together. If the buyer now owes another agent a fee, that’s between the buyer and that agent. You’re not responsible for sorting that out.
Make a business decision. That said, if you want to help your buyer out—and maintain goodwill—you might choose to contribute something toward the other agent’s claim. Not because you’re legally obligated, but as a gesture. Especially if you’re also getting the listing.

You could even negotiate: “I’ll cover $1,000, you cover $1,000, and we get this resolved.” Or say: “I’m not legally required to do this, but I want to help.” That’s a business decision, not a legal one.

If the other agent is threatening to “take the listing”—well, let’s just say they’re dreaming. Don’t let empty threats push you around. Do your research. Get your ducks in a row. Then you can act from a position of power, not panic.

Final Thoughts: Get Smart, Stay Safe

This new era of buyer agency is creating a lot of gray areas—but the best defense is a good offense. Here’s what you can do right now:

Always ask buyers if they’re under contract

Document their answer in writing

Don’t delay unnecessarily (waiting 24 hours could cost you the deal)

If issues arise, consult a contract attorney—not just your broker

Add layers of protection before closing (commission agreements, acknowledgments, etc.)

And most of all—stay calm. Don’t react emotionally. Do your research, then respond strategically. The more you know, the more confidently you can protect your business and serve your clients.

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