THE BAD NEWS: The deal didn't close (and likely will never close).

THE QUESTION: Is a commission still payable even if the commission agreement says that the commission is payable "on closing"?

THE ANSWER: Maybe.

When engaging the services of a real estate broker, many sellers, buyers and brokers assume that the broker will be paid only if the deal closes. In fact, many commission agreements do provide that the commission will be payable "through escrow" or "upon closing," but that language may not be determinative as to when the commission is earned. If the deal doesn't close, either because the transaction is cancelled voluntarily or because either the seller or the buyer breaches the contract, a commission may still be payable if the commission was earned at some earlier time.