Homebuyers sometimes gripe that their real estate agent seems more
interested in closing a sale and collecting a commission check than in helping
them find the right home at the right price.
Sellers, too, may feel pressured by their broker to make price
reductions or accept an offer that’s less than what they’d hoped to receive for
their home.
What buyers and sellers alike may not realize is that, in many
cases, real estate brokers and agents actually have no legal obligation to look
after their best interests. This is 100%
true when it comes to working with a dual agent, Georgia
Laws in 25 states now allow brokers to provide services to buyers
and sellers as "transaction brokers" or "facilitators,"
without traditional fiduciary duties of loyalty and obedience. The state of Georgia
All 50 states also provide avenues for brokers to "double
end" a deal, working with both the buyer and seller in the same
transaction and avoiding the need to split commission income with a cooperating
broker. In such instances, neither the buyer nor seller is fully represented,
critics say. The state of Georgia
Because they rely on referrals and repeat customers for much of
their business, scrupulous real estate brokers and agents strive to provide a
high level of service, whether they are representing clients individually in
"single agency" relationships or double-ending deals. Not True in South Georgia and Thomasville , GA
See related report:
Beyond Dual Agency
Beyond Dual Agency
But consumers shouldn’t assume that their broker or agent is
obligated to represent their interests, and their interests alone, until they
have seen a written disclosure describing the agency relationship under which
services are being provided to them. This form is
not truly explained to a buyer or seller in South Georgia and Thomasville , GA
Homebuyers and sellers looking to negotiate the best commission
rate, obtain the highest level of service, and protect their legal rights in
the event of a dispute can start off on the right foot by making sure they
understand the form of representation their broker or agent is providing.
Agency relationships
Agency relationships are created when one person agrees to act on another’s behalf, or represent them in dealings with a third party.
Once an agency relationship is established, agents owe their clients
"fiduciary duties" of loyalty and obedience. They are typically
required to place their clients’ interests ahead of their own, providing
services with honesty and good faith while avoiding conflicts of interest or
"self-dealing."
But the rules governing agency relationships between consumers,
real estate brokers and their agents vary from state to state, and all have
been rewritten in the last 25 years.
Depending on the laws of the state they are licensed in, brokers
can provide services in one of six relationships:
Single agency: A broker or agent represents the interests of the buyer or
seller alone in a transaction — either as the listing agent or as a
"buyer’s agent." Consumer advocates and agents who work exclusively
with buyers say single agency is the best form of representation.
Designated agency: One broker
designates two of their agents to represent the buyer and seller separately.
When states require that brokers implement safeguards to protect clients’
confidential information, designated agency is the next best alternative to
single agency, academics and consumer advocates say.
Disclosed dual agency: A lone
agent provides services to both the buyer and the seller in a limited agency
relationship, without an obligation to represent the best interests of
either. "Buyer Beware'
In states with no provisions for designated agency, when two
agents affiliated with the same broker represent both sides of a transaction,
the broker may be considered a dual agent.
Although controversial even
among real estate brokers and agents, disclosed dual agency does present
opportunities for experienced sellers to negotiate discounted or "variable
rate" commissions in advance.
Transaction brokerage: One agent
or two agents at the same brokerage may provide services to the buyer, the
seller, or both, in a non-agency relationship, owing no fiduciary duties of
loyalty and obedience. Georgia
In addition to having the same disadvantage as dual agency —
neither the buyer nor seller can expect an agent to represent their interests
during negotiations — consumers served by transaction brokers have little
leeway to file claims for professional negligence. Georgia
Provision of "ministerial" services to unrepresented "customers": A listing broker may
avoid splitting a commission with a cooperating broker by providing limited
services to an unrepresented buyer. Georgia
Every state in the union provides avenues for brokers and agents to
"double dip." Of the eight states that ban dual agency outright, four
allow designated agency (Alaska Colorado Maryland Texas Florida Kansas Oklahoma Alaska Colorado Texas Georgia
Subagency: The listing broker represents the seller in an agency
relationship. "Selling agents" who work with buyers are
"subagents" of the listing broker. All of the agents involved in a
transaction owe their allegiance to the seller, and buyers are
unrepresented. So TRUE in Georgia
Although subagency was a standard industry practice for most of
the last century, this form of representation has largely fallen out of favor
because of legal risks for brokers and sellers. NotTRUE for Georgia
Click the map image below to view an interactive map describing states’ varied
real estate representation options:
During the matchmaking stage, brokers who are hoping to double-end
a deal may attempt to steer buyers to listings they represent. Or they may fail
to aggressively market their sellers’ listings in the hopes of limiting the
pool of buyers to those they will represent. Very TRUE inGeorgia "Buyer's Beware"
Brokers may offer incentives, such as higher commission splits, to
agents who sell in-house listings to their buyers. Extremely TRUE Georgia
Agency relationships and commissions
The Consumer Federation of America advises consumers to
always negotiate commissions with real estate brokers, using agency
relationships as a starting point.
Buyers and sellers should insist at "the first
substantial contact" that brokers disclose whether they will
represent their financial interests at all stages. If not, the group advises,
consumers should ask whether the broker will represent the financial interests
of the other party, or simply serve as a facilitator or transaction
broker.
Sellers should try to "knock one percentage point" off
the standard commission right off the bat, the Consumer Federation of America
advises, and "insist that if their broker double dips, the commission
be reduced another percentage point or two."
Search and negotiate
Of all the services that real estate brokers and agents provide
for their clients, two of the most important are "matchmaking" —
connecting buyers and sellers — and negotiation. Agency relationships can come
into play during both stages.
"My broker doesn’t endorse this practice (of offering such
incentives), as it may lead to an agent ignoring the best interests of the
client in favor of the best paycheck," said Chris Dowell, an agent at
Re/Max Premier Realty in Prairie Village, Kan., a Kansas City, Mo., suburb.
Dual agency and several other forms of representation are permitted in Missouri
"There is a large, local brokerage that pays a significant
bonus for selling in-brokerage listings, and because of that, faces … lawsuits,
as well as a buying public that is very cynical toward that brokerage’s
actions." Extremely TRUE Georgia
During the negotiating stage, brokers and agents working with the
buyer and seller in the same transaction may disclose confidential information
— such as how much the seller is willing to accept — in the hopes of moving a
transaction along. "Extremely TRUE Georgia TRUE it is.
Michele Guss, an agent at Thompson’s Realty in Phoenix Georgia
"With that said, I will say when I was with (another
brokerage), agents were always telling other agents what listing they had and
what a seller would be willing to accept. This is not OK. Agents are not
authorized to give any (information) unless the seller or buyer specifically
authorizes them to do so," she added. Common
practices Extremely TRUE Georgia
Boost for brokers, but at what cost?
The California Association of Realtors, in soliciting contributions
to its Realtor Action Fund,claims that the
lobbying it has done to preserve dual agency in the state "saves"
Realtors thousands of dollars each year. Extremely TRUE Georgia
Not having to split a commission with a cooperating broker
provides a boost to the bottom line.Extremely TRUE Georgia
"Each agent and firm makes that additional amount,
respectively, because of dual agency," Lou said.
The jury is still out, however, as to whether buyers and sellers
are at a disadvantage when they agree to dual agency or other forms of limited-
or non-agency representation.
A study of 4,154 repeat sales in the Memphis, Tenn., market from
1997 through 2003, "Homeowners’ Repeat-Sale Gains,
Dual Agency and Repeated Use of the Same Agent," found no convincing
effects of accepting dual agency for buyers or sellers.
Another study of 1,334 Utah
For small- to medium-sized homes, buyers represented by their own
agents paid about 2 percent less than those who were represented by the listing
agent, or who were unrepresented "customers" of the listing agent.
But the study found that the benefit of working with a buyer’s
agent could easily be canceled out by generous commission-split offers.
That study, "Agency Representation and the
Sale Price of Houses," revealed that sellers of medium- to large-size
properties agreed to larger price reductions when the buyer was represented by
a designated agent.
The authors of the study theorized that listing agents might be
more likely to pressure sellers to agree to a price reduction if an offer was
coming from a buyer represented by another agent at their firm.
More recently, an analysis by technology-based real estate
brokerage Redfin of 230,000 home sales in 22 markets around the country in 2011 concluded that
sellers represented by dual agents agreed to larger discounts from their asking
price than sellers represented by single or designated agents.
Redfin — which primarily represents buyers in single-agency
relationships — acknowledged that sellers represented by dual agents may have
been able to negotiate commission discounts.
Legal liabilities
Despite more than two decades of tinkering with the laws,
regulations, customs and practices governing Realtor-client relationships, real
estate brokers still view agency issues as theirgreatest potential legal
liability. Georgia
NAR’s latest survey of members showed 18 percent of Realtors
practiced transaction brokerage in 2010, up from 10 percent the year before.
The percentage of Realtors practicing buyer and seller agency with disclosed
dual agency dropped from 41 percent to 32 percent. Our area inGeorgia it is up in our area by 99%
"Buyer's Beware"
Statistics provided to Inman News by four of the nation’s largest
multiple listing services show declines in
same-broker or same-office transactions during the last decade. Our area inGeorgia it is up in our area by 99% "Buyer's
Beware"
At the largest MLS in the Northeast, Rockville, Md.-based Metropolitan Regional
Information Systems Inc. (MRIS), for example, 21.7 percent of transactions in
2002 were handled by an agent or agents working out of the same office. 99% of sold listings in Georgia
The percentage of same-office sales dropped to 15.8 percent in
2009, a low for the decade, before rebounding to 16.4 percent in 2010. Our area in Georgia
Roselind Hejl, an agent at Coldwell Banker United Realtors
in Austin , Texas Georgia Georgia
"I think (dual agency) is a holdover from the days when both
agents represented the seller, and the buyer was technically not represented.
It was customary to ‘double dip’ and earn both sides of the commission,"
she said. "Buyer's Beware"
"In today’s world, agents may get away with this once in
awhile, but dual agency is rapidly coming to an end. The public wants more
information and transparency. It is up to us to respond to that." They get away with it everyday in Georgia
Worries about legal liability aren’t the only factor that may be
contributing to a general decline in double-ending.
The role of real estate websites
Consumers today are likely to start the home search process on
websites like Realtor.com, Zillow and Trulia that feature advertisements or
lead forms for brokers and agents who are seeking to represent buyers in their
market.
Those advertisements — typically worded as an offer to provide
more information about a particular property that has come up in search results
— have been controversial with some listing brokers, who want inquiries from
prospective buyers funneled to their agents.
Critics say listing brokers who object to the ads are worried that
they are losing out on opportunities to double-end transactions.
Some brokerages — such as Minnesota-based Edina Realty Inc. — have pulled their listings from
"third-party" sites that send business to their competitors over
concerns about ads and lead forms that appear next to their listings.
The nation’s fourth-largest brokerage, Pittsburgh-based Howard
Hanna Real Estate Services, recently took another tack, entering
into marketing agreements with Realtor.com and Zillow to prevent competitors’
advertisements from appearing next to the company’s listings.
Third-party sites not only provide listings data, but statistics
on market trends and neighborhood demographics, crime and schools, so consumers
are no longer reliant on real estate agents as the primary source for
community, neighborhood and home information.
http://www.inman.com/2012/02/24/buyer-and-seller-beware-your-agent-may-not-represent-your-best-interests/#
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