Agency disclosure is a mouthful — tough to say, and tougher still to figure out who represents whom in a transaction.
Seller brokers, also known as listing brokers or conventional brokers, typically represent the homeowners. They sign a listing agreement (which is negotiable) with the seller that outlines the details of their relationship.
In essence, seller brokers generally agree to be the sole agent for the property. They agree to do their best to sell the property and if they do sell it, they receive a commission (which is also negotiable).
Buyer’s agents represent the buyer. They will typically offer an agency disclosure agreement that states that they owe their fiduciary responsibility to the buyer, even if the seller pays the commission.
Sounds simple enough, but then there are the folks who muddy the waters. Dual agents represent both the buyer and the seller in the same transaction — or, I should say represent neither party. Whatever fiduciary responsibility the agent had to the buyer or seller goes out the window once the agent brings both sides to the table.
Dual agents are also often called “facilitators,” which the National Association of Realtors likes to say means that they make the deal happen. Other industry observers call this role a “non-agent” roll because neither the buyer nor the seller gets the representation he or she was expecting.
To recap, we have buyers’ agents, who represent buyers but can also represent sellers. We have sellers’ agents, who are the listing agents for a transaction but can also represent buyers. And, we have dual agents, who wind up bringing both the buyer and the seller to the closing table.
If you’re trying to eliminate potential conflicts in your deal, you may want to try a couple of other types of agency. Exclusive buyers’ agents (who typically belong to the National Association of Exclusive Buyers Agents, or online NAEBA.org), never represent sellers. They only represent buyers, and they typically will take buyers wherever they want to go in a metro area.
Exclusive seller agents only list properties. They do not work with buyers, and so can never bring both sides of a deal together.
Discount agents, which are more often than not Internet-based, or For Sale By Owner websites simply help facilitate a deal by pushing paperwork. Typically a seller will use a FSBO site or hire a discount agent and perhaps pay a flat fee in order to do the deal.
One seller recently wrote to ask which deal I thought was better: A discount agent offered to list her property for 2 percent. If the agent sold the property to a buyer who was represented by a different agent, the seller would have to pay another 2 percent. If the agent sold it to her own client, she would receive 2.5 percent.
Another option was to use a web-based service that would charge $1,200 for a listing in the local multiple listing service (MLS), a website for the listing, with photos, all the paperwork and any backend support the seller would need. If a buyer came with an agent, the seller would pay another 2 percent to the buyers’ agent. If not, there would be no additional fees other than typical closing costs, like transfer stamps.
I told the seller that if she is the kind of person who doesn’t mind doing more on her own, then the Internet-based discount brokerage firm might be a good choice. Otherwise, she should use the agent.
But it’s easy to see how confusing the situation can get, especially if a seller winds up working with a seller’s agent — who does not become a dual agent.
This happens more frequently than you might imagine. Every time you walk into a developer’s sales office without a buyer’s agent, you are an unrepresented seller. The developer’s salesperson is under no obligation to help you, represent your best interests, or even steer you to someone who can help you.
In fact, many new construction salespeople are giving a bonus if someone like you walks in without representation.
You can be an unrepresented seller if you go to an open house and start talking to the listing agent. He or she doesn’t represent you, and so everything you say can (and probably should) be transmitted back to the seller.
Seller agents cannot tell buyers what to offer for the property. They cannot tell you which home to buy if you’re deciding between two — even if they represent both properties. They cannot point out the defects of a home, unless they are material and not visible to the naked eye. And finally, seller agents can only provide you with the information you need to make a reasonable offer only if you ask for it.
You can see why it’s important to know who represent you in the single biggest transaction of your life. Adjust your expectations accordingly.
Feb. 11, 2007.