Exclusive right to sell
Exclusive right to sell is the traditional listing form, as the Federal Trade Commission describes it, in which an owner appoints a broker as exclusive agent for a set period and agrees to pay a commission when the property sells, whether the broker or the owner caused the sale. No Virginia statute or regulation defines it; the signed agreement's terms govern.
Two exclusive listings, separated by who may find the buyer
Set the Federal Trade Commission's two descriptions next to each other. In an exclusive right to sell listing, the owner owes the listing broker a commission when the property sells, whether the broker or the owner caused the sale. In an exclusive agency listing, the broker is still the owner's exclusive agent, but the owner keeps the right to sell without extensive help from the listing broker. The term on this page names the first of the two.
| Exclusive right to sell | Exclusive agency | |
|---|---|---|
| Who holds the listing | One broker, appointed for a set period as exclusive agent | The listing broker, as the owner's exclusive agent |
| If the owner causes the sale | The commission is still owed when the property sells | The owner keeps the right to sell without extensive help from the listing broker |
| How the broker is paid, per the FTC | A commission if and when the property is sold | Often an up-front fee; the broker may receive a reduced commission, or none, if the owner sells without the broker's further help |
The phrase that carries the whole difference is the FTC's own: under the traditional form the commission is owed regardless of whether the broker or the homeowner caused the sale. One broker holds the appointment either way. The forms part company over the sale the owner makes without that broker, and the FTC's descriptions of how the broker is paid follow from that one difference.
Virginia defines neither form, so the agreement's own words govern
Neither Virginia's brokerage relationship statute nor the Real Estate Board's regulations define exclusive right to sell or exclusive agency by those names. The labels are trade usage, described by a federal agency, and what binds an owner is the paper.
That paper is the brokerage agreement, which the trade calls a listing agreement on the seller's side. Va. Code 54.1-2137 requires it to carry the fee terms and any other terms the client and the licensee agreed to, and the exclusive part of a listing, with any exception written into it, lives in those terms rather than in the name at the top of the form. The full list of what the statute requires is set out in what a Virginia brokerage agreement has to include.
So two forms both headed exclusive right to sell can read differently where it counts. The heading suggests which traditional pattern the paper follows; the fee terms are where the paper says what happens if the owner sells without the broker.
What one appointed broker for a set period means while the land is listed
The set period is when the appointment does its work, and the questions an owner brings to the paper during it are practical ones.
The sharpest test of the difference is a sale to an adjoining owner. The FTC's description of the traditional form does not carve that sale out, but the description is not the agreement, and a real agreement's fee clause is what answers it. That case is worked through in listing land and still selling to a neighbor.
An owner who lives far from the land reads the same clauses with different questions in mind, about signing, showings and closing from a distance. How a listing runs when the owner is in another state is answered in working with owners who live out of state.
Who a tract is put in front of during the term is covered in how land is marketed to builders, and whether lowering the price partway through the term works against the listing is weighed in whether a price drop hurts a listing.
Which listing form would your tract go on the market under?
The form, and what it says if you bring the buyer yourself, is settled in the draft agreement. Describe the tract and raise those terms with Lowell before you sign. No cost, no obligation.
Got it. Thank you.
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Questions about this term
Is exclusive right to sell the only kind of listing?
No. The Federal Trade Commission calls it the traditional type and describes another, the exclusive agency listing, which makes the listing broker the owner's exclusive agent but gives the owner the right to sell without extensive help from that broker. Virginia's statute defines neither form by name, so the terms of any listing are whatever its written brokerage agreement says.
Where this page's facts come from
Every rule, office and figure above traces to one of these. Rules change; check the office before you act on one.
- MiRealSource Settles Charges it Illegally Restrained Competition (press release, February 2007) Federal Trade Commission
- FTC Charges Real Estate Groups with Anticompetitive Conduct in Limiting Consumers' Choice in Real Estate Services (press release, October 2006) Federal Trade Commission
- Va. Code 54.1-2137, Commencement and termination of brokerage relationships; brokerage agreements required Code of Virginia
- Va. Code 54.1-2131, Licensees engaged by sellers Code of Virginia