Theft of Services ?

I could be on to something here for Realtors. See also my previous blog entry which lays a good foundation for this follow up article.

If there was a Buyer Agency Agreement or Listing Agreement in place which called for X% commission based compensation for professional services (deferred or upon contingency) and the buyer or seller "drove-off" or "walked-out" on the agent after consuming his/her professional services without consummation of a sale (through no fault of the Realtor) could the agent file a criminal complaint under the larceny provisions of a state's criminal law statutes governing "theft of services" or grand larceny  ??  Why should Realtors constantly let the public get one over on us all the time with no consequences or ramifications.  As I have stated previously and in the article referenced above, I know of no other licensed profession, trade or occupation which allows the public to "screw" us time and again and go scot-free

Why should we as agents be doing "pro bono" work for the public and not be reimbursed for our costs advanced out-of-pocket and not be compensated for our investment of time, resources, energy and money on a "client's" behalf ?  An attorney or lawyer would bill the "client" for every little push of his pencil, call answered or e-mail; and the hourly par value of an attorney in the Greater Washington, DC Capital area is probably somewhere around $200 per hour.  Why shouldn't Realtors (who are also licensed professionals) also "bill" the client for our professional services or hold the consumer somehow accountable or liable for compensating us something for our time, energy and resources on their behalf ?  Consider the following below:

Code of Virginia § 18.2-95. Grand larceny defined; how punished.


Any person who (i) commits larceny from the person of another of money or other thing of value of $5 or more, (ii) commits simple larceny not from the person of another of goods and chattels of the value of $200 or more, or (iii) commits simple larceny not from the person of another of any firearm, regardless of the firearm's value, shall be guilty of grand larceny, punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years or, in the discretion of the jury or court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both.

Not sure what the "of another" means.  Since real estate commissions are actually paid and due to the real estate broker and not to the agent directly (but then split by the broker and paid to the agent) could "of another" mean the real estate broker who is actually the one who is being stolen from or cheated?
Either way, it appears that "theft of services" IS considered larceny (stealing or theft) and the Virginia Code does not define what "other thing of value" is (such as an earned real estate commission) and that "theft of services" is included as something of value that can be stolen; therefore, [professional] services should also be included as "services"; and not merely limited in scope to trade or communications type of "services". 

What is Larceny under Virginia Criminal Law?

Larceny is the act of depriving someone of the use of, or otherwise stealing or theft of property, goods or money. Shoplifting in Virginia falls under Virginia larceny laws.


Different classes of larceny include:

• Grand Larceny: Theft of $200 or more (Felony)
• Petite Larceny: (Petty Larceny) Theft of less than $200 (Misdemeanor)
• Receiving Stolen Property: Felony ($200 and above) or Misdemeanor (less than $200)
• Theft of Services
• Writing Bad Checks
• Unauthorized Use of a Vehicle

Therefore, if a buyer (or seller) entered into an Exclusive Agency Agreement which calls for the broker/agent being remunerated X % brokerage fee commission for the professional services of the agent (which the broker/agent defers until settlement or closing solely as an accommodation to the buyer or seller and is not construed as a waiver of the brokerage fee commission for professional services); and the buyer or seller do not proceed with consummation of a real property sales transaction through no fault or breach of agency duties and obligations or abandonment by the Realtor agent -- then the buyer or seller person HAS in fact committed theft of services or criminal larceny.  It would not be merely a civil matter to recover any deferred brokerage commission from the deadbeat client; but the act of theft of [professional] services would in fact constitute CRIMINAL larceny.

Your broker will undoubtedly give you the old platitude of "we do not want to damage the good will or name of the business" [by engaging in any such action to recover costs from a "drive-off" or "walk-out" deadbeat client].  Sure... that's easy for them to say because the broker was not the one driving the "client" around showing houses and getting screwed for un-reimbursed expenses out-of-pocket on the "client's" behalf or for the "client's" benefit, or spending money out-of-pocket advanced for a listing with marketing and advertising expenses, open houses, etc.

So, for you agents who have been screwed royally, the only support from your broker you'll probably going to get is rhetorical lip-service moral support. You may want to consider going after those deadbeat "clients" in small claims or General District Court and/or swearing out a criminal complaint for "theft of services" ....  In order to prevail, however, make sure you have an iron clad Agency Agreement contract form with stipulations concerning the brokerage fee commission (that is earned when professional services are substantively performed or rendered - but deferred solely as an accommodation to the client and not waived) and a stipulation in your agreement as well which covers buyer or seller defaults under the terms of the agreement along with the remedies for such.  Remember that promises and commitments when working with a client should be bilateral, not just unilateral on you, the agent.

Remember too as I have said in previous blog articles here, that the Association of Realtors board Agency Agreement forms (national or regional) offer no protection for the agent whatsoever and actually allow, condone or facilitate the client being able to drive-off or walk-out on us as they wish with no consequences or ramifications.  That is why I drafted my own iron clad Agency Agreement forms which are perfectly binding and legal.  Speaking of legal... make sure you also specify which state your Agency Agreement contract forms come under the jurisdiction of in the event that litigation, mediation or arbitration are required to enforce any of the terms of your agency agreement contract form with the [deadbeat] client.

If a prospective buyer or seller client is not willing or comfortable signing an Agency Agreement form with you, as their exclusive agent, which provides for fair and just compensation and remuneration for your professional advise and counsel; and the expenditure of your time, resources and out-of-pocket expenses on their behalf; then that should be a clue for you to perhaps not work with that person or those people.  If they are truly SERIOUS about buying or selling their home or trading up, and have confidence in selecting or choosing you as their agent (based on your past performance and track record of success as is evidenced by your client testimonials or referrals) then there should be no legitimate reason why they should not execute such an agreement with you which calls for bilateral accountability and performance under the terms of the agency agreement contract.  The Agency Agreement contract form should be a welcomed and embraced affirmation of your mutually beneficial working relationship with each other and promises or commitments with and to each other.

Think of it like a marriage contract or certificate or an exchange of vows.  Why should you, the agent, be the only one making promises and commitments of fidelity ?  Shouldn't the client be loyal and faithful to you as well ?  If they want a "divorce" through no fault of yours or want to just walk-out or drive-off on you; shouldn't they have to pay for something for Heaven's sake as an "alimony" payment to you ?  LOL  : )