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If an Agent on a Sale Arranges For the Seller to Rent From the Buyer, is He Owed a Commission?

Rabbi Aryeh Finkel

Question: Reuven contracts a real estate broker to find him an investment property to purchase. His plan is to buy a property and then rent it out. 

The agent does find him a property that’s for sale. Shortly before closing, the agent tells him that the seller would like to rent the property and be his tenant for a year after the sale. 

The agent claims he is entitled to commission both for the sale and for finding the renter. Is he correct? 

Answer: The agent is entitled to a commission for brokering the sale; however, he was not an agent for the rental and is not entitled to a full commission for that. 

The Avnei Nezer speaks about a similar case regarding a shadchan. In his case, a shadchan suggested a shidduch, which the girl’s family chose not to pursue. Capitalizing on his idea, some other shadchan came along and suggested this boy for the younger daughter of that same family – and this shidduch ended up being successful. The first shadchan then demanded some shadchanus for his initial input. The Avnei Nezer ruled that the first shadchan is not entitled to any remuneration because the shidduch that he suggested never happened and the second shidduch was not his suggestion. Yes, he brought up the idea and initiated the process that led to a benefit for the family, but this was not done in order to be paid for what ended up happening. He never intended to suggest a shidduch for the younger daughter. He, therefore, had never intended to be paid for that. 

This is relevant in brokerage as well. When someone gives a referral, he only gets paid for the deal that he intended. In this case, although the broker did inform the buyer about the seller’s desire to rent from him, he still was never intended to be a rental broker and is not entitled to a commission for that. If, however, the broker put in time and effort to negotiate with the seller to convince him to rent the property and the deal only ended up happening because of his persuasion, he is entitled to some commission for completing the deal, even though he is not entitled to the full commission of a rental broker. 

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