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FACTS:                      

At the seller’s request, the listing agent agreed to cancel the listing.  The parties signed written documents affecting this cancellation.  Within a week after the cancellation, the seller entered into a contract with a buyer to purchase the property.  The agent believes that the cancellation was accomplished in bad faith by the seller and wants to pursue a commission.  The agent’s broker, however, refuses to pursue the listing commission because of the language in the cancellation document and out of concern that a lawsuit pursuing the commission will result in a counterclaim for negligence against the agent and brokerage firm.

ISSUE:                      

May the agent pursue the commission without the broker’s consent?

ANSWER:                

No.

DISCUSSION:

By statute, commissions belong to the brokerage firm.  See A.R.S. 32-2101(49).  Further, real estate licensees may only accept commission by and through the broker to whom he is licensed.  See A.R.S. 32-2155(a).  Thus, because the brokerage firm “owns” the commission, the listing agent may not pursue the commission claim against the seller without the broker’s consent.