The questions most vendors never think to ask
Listing your property is a significant decision, and most of the attention in the lead-up goes to the obvious things: which agent to use, what price to set, when to go to market. But there are a handful of practical and legal realities in the New Zealand real estate market that vendors rarely hear about upfront, and that can have a meaningful financial impact if they catch you off guard.
This is not a reason to be anxious. It is a reason to be informed. Here is what you should understand before you sign anything.
“Free” Marketing Is Never Actually Free
Some agencies advertise zero upfront marketing costs as a point of difference. It sounds straightforward: list your property, pay nothing until it sells. But it is worth understanding what that means.
Marketing costs money. Photographers, videographers, floor plans, online listing placements, print advertising and signage all have a real cost. When an agency offers to cover these costs upfront, the exact arrangement should be clear in writing. The costs may be included as part of the agency service, deferred until sale, built into the overall commission structure, or recoverable in certain circumstances. In some agreements, marketing or advertising costs may still be payable even if the property does not sell.
A more practical question is what happens if you change agencies before a sale is reached. Depending on what you have signed, you may be responsible for marketing spend already incurred by the first agency and then need to approve a fresh campaign with the next agency. That can mean paying for similar work twice, so the position should be understood before the campaign begins.
Before signing, ask directly: what are the total marketing costs, how are they structured, and what happens to those costs if I choose not to proceed or to change agencies? Get the answers in writing.
Double Commission: A Risk Few Vendors Know About
This is one of the least discussed but most financially significant risks in property selling, and it catches vendors out more often than it should.
In New Zealand, agency agreements can include clauses that entitle the listing agency to a commission even if the property ultimately sells through a different agency. The trigger is typically this: if a buyer was introduced to your property by the first agency, whether at an open home, a private viewing, or through direct contact, and that buyer later purchases the property through another agency, the original agency may have grounds to claim their commission.
The result, in the worst case, is that you may face a commission claim from more than one agency. One agency may have completed the sale, while another may argue that it first introduced the buyer. These disputes can be difficult and expensive to resolve, which is why they are best avoided through clear written records and careful cancellation of any existing agency agreement.
Read your agency agreement carefully before signing. Ask your agent to explain any clause that refers to buyers who have already been introduced or shown through the property. If in doubt, have your solicitor review the agreement before you commit.
Who Actually Owns Your Property Photos?
This one surprises many vendors. The right to reuse real estate photography depends on the contract and licence terms attached to the shoot. Copyright ownership and usage rights are not always the same thing. In some situations, the person who commissions and pays for photographs may own the copyright, while in many commercial photography arrangements the photographer or agency may retain ownership and grant only a limited licence for listing and marketing use.
In practical terms, this means that if you change agencies mid campaign, or if your listing agreement expires and you re list elsewhere, you may not automatically be permitted to use the original photographs in your new campaign. The incoming agency may also need permission before using them, depending on who owns the images and what the original licence allows.
The consequence can be a second photoshoot. For a premium property where photography and videography costs can be significant, this is worth clarifying early. Ask before you list who owns the images, who holds the usage rights, what the licence allows, whether the images can be used by another agency, and whether the licence continues after the campaign ends or if no sale is achieved.
Sole Agency Agreements: What You Are Committing To
Most residential listings in New Zealand are handled under sole agency agreements. This means that for the duration of the agreement, that agency is generally the only agency authorised to market and sell your property. If a buyer comes to you directly during that period and you sell without involving the agency, you may still owe commission depending on the wording of the agreement.
Sole agency agreements usually run for a fixed term, but the length can vary and can often be negotiated. For residential property, if a sole agency agreement is for more than 90 days, either party may cancel it after 90 days by giving written notice. Some agreements may also include provisions that allow the agency to claim commission after the agreement ends if someone they introduced to the property later buys it within a stated period.
Understand the full duration, including any post agreement commission period, before you sign. If the initial term feels too long given your circumstances, it is reasonable to discuss a shorter period or clearer cancellation terms. A good agent should be able to explain why the proposed timeframe is appropriate for your property and campaign.
What Happens If Your Property Does Not Sell?
This is a question worth asking before you list, not after a campaign has run its course without a result.
If a property passes in at auction or does not attract an acceptable offer during the listing period, different agencies handle this differently. Some will continue to market the property at no additional cost. Others may seek a fresh agreement with revised terms or invite you to fund an updated marketing push.
Ask your agent upfront: what does the process look like if we do not achieve a sale within the agreement period? What costs, if any, do I carry? What would you recommend we do differently, and at whose expense? A confident, experienced agent should be able to answer this clearly and without hesitation.
The Things Worth Asking Before You Sign
Most of the situations above are manageable if you know about them in advance. The challenge is that they rarely come up in the initial conversation with an agent, not necessarily out of bad faith, but because the focus is usually on momentum and enthusiasm rather than the fine print.
Before you sign any agency agreement, it is worth asking the following questions:
- What are the total marketing costs and how are they structured?
- What happens to those costs if I change agencies or choose not to proceed?
- Are there any clauses relating to buyers who have previously viewed the property through another agency?
- Who owns the photography, who can use it, and does the licence continue beyond the campaign?
- What is the full duration of the agreement, including any post agreement commission period?
- What happens if the property does not sell?
These are not difficult questions. But they are important ones. And the answers will tell you a great deal about the agency you are considering working with.
This article is general information only and is not legal advice. Every agency agreement is different, so vendors should read the agreement carefully and seek independent legal advice if they are unsure about any term.
At The Cooper Group, we believe that an informed vendor is a confident vendor. If you would like to talk through what listing with us looks like, including the details most people never think to ask about, we would welcome the conversation.
