27th June 2010

Buyer Broker Agreements. Do you use them?


As a member of some professional real estate groups on Linked In, I recently answered the following agents post and thought it might be of interest to my readers. About 50 other agents and brokers responded as well and made the obvious point that agents protect themselves when they insist on a Buyer Brokerage Agreement. A few agents said they had no problem “working” with buyers without the agreement – that no buyer had stiffed them. What no one discussed was the legal implications for the agent when they dont excercise thier duty to fully disclose agency choices to buyers so they understand the implications of thier choices, the limitations and risks to the agent and buyer when the agent agrees to work without a Brokerage Agreement, and all the negative implications for the buyer when no Brokerage Agreement is used – that’s why I wanted to respond with an answer that more fully incompassed the ramifications of all aspects of the subject:

Buyer Broker Agreements. Do you use them?

Jarred – I typically only work with someone if they will sign a buyer broker. It just adds protection. Yet I have a new buyer who sought me out from an open house I had, whose wife is a former Realtor from another state and he’s just adamant about not signing one because they fear it ‘locks them into me.’ I may veer away from them because of this. If they’re already telling me they don’t want to be locked into ONE Realtor already this may be a red flag for me that I’ll end up getting left in the cold. Thoughts?

Robert Whitfield • I will only work with a buyer while under a written Exclusive Buyer Brokerage Agreement – and here is why:

1. You do protect yourself – against a buyer using another agent after you have done all the work – or thinking they can somehow do better than you and contacting the seller directly.

Note: I have a very unique and advantageous Buyer Representation Program that no other agent here in Atlanta can match, so I run very little risk of a buyer leaving me for another agent. For me, the next point is really the driving reason to ONLY work with buyers under a written Brokerage Agreement.

2. You can fully serve and protect the buyer – ONLY when they become your client. This is the one that buyers who don’t want to be “locked in” to an agent don’t get (and many agents completely forget) – it’s all about agency relationships. In the absence of a Buyer Brokerage Agreement, you as the agent can not legally give the buyer the benefits of your expertise and knowledge, or protect them from mistakes, etc, because those services are reserved for “clients”. A buyer who is merely “working” with an agent without a Buyer Brokerage agreement is a customer – and the agent in that case is supposed to provide only ministerial acts – acts that require no judgment, expertise, or industry knowledge – to do otherwise can set the agent up for a lawsuit by the buyer and various other parties (the seller) if something goes wrong. It is in the buyer’s best interests to be represented as a client and never left to fend for themselves as a customer. Agents who work with buyers without representing them risk becoming an “undisclosed dual agent” without realizing it – in most states that can get them into serious trouble with the real estate commission.

While buyers may not know anything about agency, or how to protect themselves in a transaction, or what duties agents owe them when they are a client versus a customer – we as agents and brokers are responsible for fully informing them about agency and their choices of service levels (before we ever work with them) so they know the ramifications of their choice of being a client versus merely a customer.

In the rare cases where I run into buyers who are leery of Exclusive Buyer Brokerage Agreements (usually first-time buyers or buyers who had a horrible agent in the past), I make sure they fully understand the above – I have only had one buyer in ten years not sign a Buyer Brokerage Agreement when they fully understood that it was in their best interest to do so. (Some people need to be saved from themselves!)

I have offered a 1-2 day Brokerage Agreement to a few buyers which is a “try it before you buy it” approach that works well. It allows you to protect yourself, and provide top level representation to your client, and they see how you work and then are comfortable signing a longer term agreement.

I also explain to buyers who seem nervous about “committing” to an agent – “any agent who is willing to work with you without a Brokerage Agreement is not only agreeing to do less than a great job for you, but refusing to protect ‘their own commission and livelihood’, so what in the world makes you think such an agent will protect YOUR interests and money in a transaction if they won’t even protect their own interests?”

I refused to help the buyer who refused to sign my agreement, explaining that it would be a disservice to him. His wife was furious with him and apologized to me, but I will never make an exception to this practice. Its just good business – I am supposed to be the expert – I don’t let my prospects or clients dictate how I run my business.

What do you think?

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