Rewrote the addendum four times and still can't draft a clean carve-out
I'm stuck on this and I've rewritten this addendum four times now.
I want to sign an exclusive twelve month buyer agreement with one agent. She's earned it, she's fast, and exclusivity is what gets me her attention on the off-market stuff. Fine.
Problem is I'm on three wholesalers' lists and I've closed two assignments in the last year through them. Those come to me with no agent involved, I underwrite them myself, I close them myself, and there's nothing for a broker to do. If the exclusive covers them I'm paying 2.5% for nothing, twice a year, on deals that already have a $12k assignment fee baked into the price.
So I drafted an exclusion: "Compensation shall not be due on any property acquired by assignment of a purchase contract where Buyer received the initial offering directly from an unlicensed principal or wholesaler and Broker performed no showing, negotiation, or contract service."
Three things I can't get comfortable with.
First, some of my wholesalers are licensed. One is an agent at a different brokerage doing assignments on the side. My wording says unlicensed principal, which excludes exactly the guy who sends me the most deals. If I widen it to any wholesaler, my agent can reasonably say I've just carved a truck through the middle of her agreement.
Second, overlap. Twice last year a wholesaler sent me something my agent had already emailed me about two weeks earlier off a pocket listing. Under any wording I write, both of them have a claim. I don't want to litigate who was first on a $140k house.
Third, and this is the one I actually can't solve, I don't know how to keep the carve-out from making her stop working. If she reads it as me reserving the good channel for myself, she has every reason to send me her leftovers and spend her hours on a client with a clean agreement. The whole point of exclusivity was to buy her attention and this addendum spends it.
What I'm considering instead is dropping the carve-out entirely and paying her a reduced fee on wholesaler deals, maybe $1,000 flat, for reviewing the contract and running the closing coordination. Then she gets something on every acquisition and has no reason to resent the channel, and I've bought a second set of eyes on assignment paperwork I've been reading alone.
I can't tell if that's an elegant solution or if I've just talked myself into paying $1,000 twice a year for nothing.