Authored by: Laurie Mindnich
July 3rd, 2008
As buyer agency becomes more common in New York, myths and misunderstandings abound.
A consumer misunderstanding involves seller perception. While the term "buyers agent" might strike fear in the heart of a seller accustomed to both parties working with a buyer on behalf of the seller, it's actually clarification for both parties in the transaction that tends to afford the process an ethical and smooth conclusion.
Working on behalf of a buyer does not eliminate required "fairness to the seller" intrinsic to all transactions.
The idea is NOT to create issues for the seller, or offers without merit. Rather, it is to clearly define the parameters of a fair price, fair terms, and in all likelihood, required pricing commensurate with value that will ultimately be determined by an appraiser.
Another myth that appears to be perpetuated by some Realtors on Long Island is that a buyer agency contract is required in order for a buyer to obtain representation. Realtors on Long Island tend to concern themselves with a "liability" issue which, so far, I'm simply not seeing as an issue at all. It is no different than liability present when Realtors represent (with fiduciary) a seller.
Confused, many agents feel that a contract guarantees THE BROKER payment, eliminating the possibility of a buyer locating a property after a Realtor has presented properties to a buyer. Indeed, it is from our view a "hostage" situation.
Our philosophy is that if we haven't established the necessary trust between ourselves and a buyer, we haven't established the right to compensation. While some might consider this perception risky, we have found that buyers with loyalty earned by us are more than willing to keep us as their agent, irrespective of the possibility of a property located without our involvement (i.e., open house, fsbo , etc.).
In the event that a buyer does locate and consummate a transaction despite our involvement, we are inclined to look to ourselves for the problem- surely, had we operated with an acceptable level of integrity and trust, we would be included in the transaction.
Another problem with a signed agreement from the buyer (outside of the NYDOS disclosure) is that there are many Long Island Realtors that intentionally, or out of ignorance, either counsel sellers to discourage buyer agency compensation (but include, in the price of the house, a fee to be paid to an agent that brings a buyer, representing the seller), or don't alert sellers that this compensation is not included in their listing agreement.
For this reason, holding a buyer hostage via a contract that may well require payment out of the pocket of the buyer is a violation of the fundamental practice of buyer agency on Long Island, and the accompanying fiduciary incumbent upon the Realtor- causing an unnecessary expense is a violation of fiduciary, and therefore unacceptable.
If we can't convey to the listing agent and seller that payment is to come out of the proceeds included in the price of the house via a fee that OUR BUYER is paying in the price of the house, we aren't doing our job. Period.
Until listing agents reduce their fee to include ONLY the listing "side" (typically, a total seller fee is 6%, with 3% going to the buyer's agent) it is incumbent upon all of those seeking to represent buyers to comprehend FIDUCIARY to the buyer through a full understanding of what the buyer is paying in the price of the house for representation.
It is appalling to imagine that a buyer's agent would require payment from a buyer, knowing that the fee for the buyer is IN THE PRICE OF THE PROPERTY, AS WELL.
Long Island is tricky. Were it like most areas that are full of seasoned and competent Realtors accustomed to buyer agency as the only way to conduct real estate, there would be no concern that a buyer would be compensating their agent once through the listing fee in the house, and again out of pocket to the agent. It simply isn't a problem in many areas, as ALL listings fully anticipate, and offer payment to, a buyer's agent in the MLS system.
Until this is true in New York, and specifically on Long Island, it is dicey, and unacceptable to demand a contract from a buyer seeking representation.
We don't do things the way that Long Island "does things", because it has been far too unethical in our opinion, for BOTH parties in the transaction. The resultant disdain that most consumers have toward the real estate industry in general on Long Island is a deserved assumption.
Working to become an integral part of a fair transaction does not seem an unreasonable request on the part of consumers. Hey, it has to start somewhere.
If you are seeking a property on the North Fork of Long Island, or would like a review of our consumer friendly rates to list your home with the utmost care, please contact us. We are happy to answer any questions that you may have. Our goal is your goal- a transaction that is clear, defined, and puts integrity ahead of self-gain.
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Great post Laurie. Nicely stated and oh so true. There was one sentence that I question,
"Realtors on Long Island tend to concern themselves with a "liability" issue which, so far, I'm simply not seeing as an issue at all. It is no different than liability present when Realtors represent (with fiduciary) a seller"
So far I don't see the liability as an issue either. However, it is different from the liability present when Realtors represent a seller. When a Realtor represents a seller the seller is responsible for the acts and statements of the agent. With a buyer's agent the buyer's agent alone is responsible for the statements made and any errors and ommissions.