STRAIGHT ANSWERS ABOUT AN AGENT’S ROLE
“Seller’s Agents? Buyer’s Agents? Even Dual Agents! What does all this mean to me as a homebuyer or seller?”
As a homebuyer or seller, you and the real estate agent working with you share a common goal-to buy or sell a home. Real estate agents are professionally trained to accomplish that goal. Simply put, agents are matchmakers bringing buyers and sellers together. You should understand right from the start what type of relationship exists between you and the agents you deal with. Real estate agents-brokers and sales associates-are ethically required and, in many states, required by law to let consumers know whether they are representing the buyer or the seller. Traditionally, real estate agents represent the seller. That was true whether the agent helped the homeowner market the home or the homebuyer find the right home. Agents were legally bound to represent the seller. Typically the seller paid both the listing agent and the agent who brought the buyer. Today’s real estate market has introduced new ways for real estate agents to work with buyers and sellers. Now consumers have choices. If you want to sell a home, you can engage a real estate agent who is a “seller’s agent.” If you want to buy a home, you can work with a “seller’s agent,” a subagent of the sellers agent, or in some areas you can engage a real estate agent as a “buyers agent.” To help you understand your choices and their implications, this brief brochure answers many basic questions. For in depth answers to your specific situation, talk with a real estate professional and ask about individual and local practices. State laws vary and are constantly changing. Be sure to get authoritative counsel before enlisting the services of an agent. Remember the goal of all real estate agents is the same-to help bring about the sale or purchase of a home. Expect to be treated with honesty regardless of agency relationship. Together buyer, seller, and agents get the job done.
Straight Answers about a Real Estate Agent’s Role
Know the Players
To understand agency, it helps to first know the names of the players. A “broker” is a person who has passed a special exam to earn the designation and is licensed by the state. Typically a principal broker forms a real estate company and recruits real estate licensees (salespersons and associate brokers) to the company as associates (often called “agents”). When an associate represents the principal broker in a transaction-rather than the principal broker working personally with the client-the principal broker gives some or all of the brokerage commission to the associate.
Agent and Principal
Legally speaking, an agent is the person who represents and acts on behalf of another person, called the principal. The agent owes certain duties to the principal. These duties include undivided loyalty, reasonable care, confidentiality, full disclosure, obedience, and accurate accounting.
A real estate agent who is employed by and represents only the seller in a transaction is a “seller’s agent.” This agent is also known as a “listing agent,” because the agent lists the home for sale and generally markets it through a Multiple Listing Service. The listing agreement serves as a contract between the seller and the agent, and spells out how the seller’s agent will be paid. Responsibilities of a seller’s agent include getting the highest purchase price and best terms possible for the seller. A seller’s agent can offer buyers a variety of services, including a diligent search to find the right home, an explanation of available financing, calculation of monthly payments and estimated settlement costs, etc. The seller’s agent is expected to act honestly and in good faith and disclose to the buyer all facts which materially affect the property. However, a seller’s agent cannot divulge confidential information to the buyer that is not in the best interest of the seller, such as what price the seller will accept or offer an opinion of the home’s value. In many instances, a subagent
of a seller’s agent produces a buyer of the home. Although the subagent is often contacted by the potential buyer and works hard to help the buyer find the right home to purchase, the subagent-like the seller’s agent-represents the seller during negotiations and is responsible for getting the best terms possible for the seller.
A real estate agent who is employed by and represents only the buyer is a “buyer’s agent.” The agreement between the buyer and the buyer’s agent serves as a contract between them and typically spells out the agent’s duties and how the agent will be paid. The buyer’s agent may be paid by the seller through a commission split with the listing agent or paid a sales commission by the buyer or by some other mutually agreed-upon formula. Some buyer’s agents may also (or instead) charge the buyer a retainer or hourly fee for services. In addition to helping the buyer with the house-hunting process, the responsibilities of the buyer’s agent-unlike those of the seller’s agent or subagent-include negotiating the best price and terms for the buyer.
Disclosed Dual Agent
A real estate agent who is representing both the buyer and the seller with the knowledge and written consent of both is a “disclosed dual agent.” While these agents still give their best effort to marketing the seller’s home, dual agents cannot give either the buyer or seller undivided loyalty or disclose any confidential information. Dual agency occurs. For example, when a buyer working with a buyer’s agent wants to purchase an in-company listing; that is, a home listed by the company of the buyer’s agent. All agents in the company are automatically agents of the seller by virtue of their association with the listing agent’s company in most states. Even though the buyer and seller are working with different associates from the company, the real estate company and both associates then have a dual agency relationship with both buyer and seller.
Commonly Asked Questions
Straight Answers for Buyers
How can a seller’s agent or subagent help me and what can’t they do?
A seller’s agent or subagent can provide you, the buyer, with many important services. Here are a few: help you determine what price home you can afford and explain how different loans can stretch your buying power; search all homes in the Multiple Listing Service and help select the homes which best meet your needs; provide information about homes, recent area sales if asked, neighborhoods, and local lending institutions; prepare your sales contract and present it to the sellers; walk you through the home buying process and keep in contact with lenders, inspectors, and sellers through settlement. Since the seller’s agent is required to share with the seller information you provide, you may want to keep certain money and other confidential matters to yourself. Common sense should be your guide. For instance, you may not want to say your willing to pay more than the price you’re offering, or that you’d agree to pay more points or closing costs, or that you’re especially motivated to buy.
Remember, The sellers agent can’t offer an option of the property’s condition, the value of improvements, any urgency the seller may be under to sell, and if the seller will accept a price below the asking price. The seller’s agent assisting you also must respond to such questions as “What do you think I should offer?” and “What do you think the home is worth?” with the answer, “I can only quote the listing price.” When it comes to price and terms, at the negotiating table, you must be your own representative. The seller’s agent will present your offer and bring back to you the signed contract, a rejection, or a counteroffer. You are free to respond as you see it.
Should I be represented by a buyer’s agent?
There is no simple answer. Some buyers want the help of an agent in whom they can confide. A buyer’s agent can discuss relative advantages and disadvantages of a particular home, advice on how much to offer, evaluate improvements, and actively participate in negotiating favorable price and terms for the buyer. Other buyers who want to be certain the seller will pay all agents’ commissions and are comfortable negotiating for themselves feel a seller’s agent or subagent will give them all the assistance they need to find a home and close the transaction smoothly and successfully.
I know the seller’s agent is paid by the seller, but who pays the buyer’s agent?
Compensation arrangements for buyer’s agents vary. Surveys have shown most buyers’ agents are paid like seller’s subagents; that is, buyer’s agents generally receive a share of the commission paid from the sale proceeds. Many listing agreements between seller and seller’s agent note whether the commission will be split between the seller’s agent and buyer’s agent or must be negotiated.
There are however, other ways buyer’s agents may be paid. Occasionally sellers lower their sales price by the amount that would have been paid to a subagent so the buyer can pay the buyer’s agent directly. Other home sellers prefer to negotiate the payment for buyer’s agents on an offer-by-offer basis, or in rare instances still other sellers refuse to pay a buyer’s agent; either way, the buyer may end up paying the buyer’s agent. Some buyer’s agents collect a retainer fee from the buyer at the beginning, some charge by the house, and some charge a flat fee or a combination. Often these fees are applied against any subsequent commission received by the buyer’s agent.
If the buyer’s agent I use will split a commission based on the sales price, doesn’t the buyer’s agent have a conflict of interest when it comes to negotiating the lowest price for me?
While theoretically this could be true, in practice buyers agents would benefit only slightly by failing to negotiate the best price. For instance, for every $1,000 paid above the bottom price a seller would have accepted, the buyer’s agent only receives a few dollars extra in commission. Most buyers agents prefer to negotiate the lowest possible price and ultimately receive much more valuable referral business from satisfied buyers. Some buyers and buyer’s agents agree on a payment formula not tied to the sales price, such as a commission based on original asking price or a flat fee.
Can a buyer’s agent show me all the homes for sale in the area?
IN areas with a Multiple Listing Service, a buyer’s agent generally can show buyers almost all available homes, including homes not in the Multiple Listing Service. The listing agreement made between sellers and the seller’s agent often specifies whether buyer’s agents may show the home. Most sellers want their home made available to the largest possible audience of potential buyers. It is rare, but possible, that a seller may refuse to work with a buyer’s agent. A special in-company situation occurs when you want to see a home that your buyer’s agent has listed for sale as a seller’s agent, or is listed by another agent at the company and company of your buyer’s agent. Individual companies and local practices vary. Ask the agent whether the company or agent would then modify the agency agreement and act as a disclosed dual agent, or, perhaps, would suspend the buyer’s agent agreement and refer you to another agent who could show you the property. Naturally, the buyer’s agent can still show you other listings in the area.
Can a seller’s agent show me all available homes?
Generally speaking, because the agent represents the seller, the agent can show you any home available through the Multiple Listing Service. That includes home listed personally by the agent, homes listed by another agent in the same company, and homes listed by agents in other companies. In areas without a Multiple Listing Service or where each real estate company shows only its own listing, both buyer’s and seller’s agents may be restricted to showing their own company listings.
Straight Answers for Sellers
I’m selling my home. Should I agree to let buyer’s agents show my home?
Although only you can decide whether you want to permit buyer’s agents to show your home, remember the greater exposure your home gets to qualified buyers, the more likely you are to sell it quickly and at the highest possible price. The majority of sellers and seller’s agents let any agent help sell the home. Sellers typically don’t care who brings a buyer or how the broker splits the commission as long as the house sells.
If a buyer is using a buyer’s agent, do I have to pay the buyer’s agent a commission?
Practices vary by area. Check with your agent to learn about your choices. As the seller, generally you can indicate on the listing agreement whether you are willing to pay the buyer’s agent. Most sellers choose to work with a broker who splits the commission with a buyer’s agent even though that agent does not represent the seller’s interests. This, of course, maximizes the number of potential buyers for your home. Because the listing broker already is prepared to share the commission with a subagent who produces the buyer, most sellers don’t mind when their broker instead shares the commission with a buyer’s agent.
Can the seller’s agent represent me in the sale of my home and then continue to represent me as a buyer’s agent when I purchase my next home?
If the sellers agent also works as a buyer’s agent, the agent can go on to represent you as a buyer’s agent-under a separate agreement-as you purchase another home provided both you and the agent agree to the representation.
How and when will I find out who an agent is working for?
Most states require real estate agents to disclose to buyers and sellers their agency relationship. The National Association of Realtors supports disclosure laws requiring real estate agents “to provide timely, meaningful, written disclosure to consumers of all possible agency relationships available under state law and the most significant implications of choosing one type over another.” This “disclosure” should take place early, certainly before either a seller signs a listing agreement, a buyer is shown any properties, or the real estate agent is told any confidential information. The consumer usually signs a form acknowledging the agency disclosure.