When looking for real estate, most buyers generally look to real estate brokers for advice and information. Buyers should, however, be aware of the fact that in traditional real estate most agents are bound by law to promote the interest of sellers. Agents who list property and their brokers are obligated to the seller, not the buyer.
The system, of course, no longer makes sense because buyers need protection as well and the transactions have become much more complicated as a result. Fortunately, the market place has responded. Buyer brokerage firms have sprouted all over the country.
Protecting the Buyer
Real estate services essentially consist of the following:
Providing information such as property data, zoning information, community statistics, financing sources, offering property value reports, negotiating assistance, advocacy and confidentiality. In the past, buyers have had some but not all of these services because agents have represented sellers.
Today, buyers can protect themselves by retaining buyer's agents and in some cases, attorneys. Buyer agents cannot, of course, give legal advice.
The main service that buyers typically are looking for is confidentiality. In the traditional real estate system, seller agents are legally responsible for disclosure of all buyer information to the seller to assist the seller in their decision making process. For example, if the seller's agent knows how high the buyer will go on a piece of property, that information must be disclosed to the seller.
A buyer's agent, on the other hand, maintains the buyer's confidentiality and will disclose only those facts that a buyer wants disclosed. It is illegal for a buyer's agent to violate the confidentiality of the buyer.
Full Representation, Limited Representation & No Representation
In addition to seller agency and buyer agency, laws exist, or are pending, which allow real estate licensees to represent both parties to a transaction. These agents are identified by confusing and perhaps, deceptive labels such as transaction brokers, disclosed dual agents, limited dual representation agents, appointed agents.
In terms of services and legal responsibilities, these agents are providing informational services to both sides, but they are not authorized nor obligated to protect, advise, or negotiate for either side of the transaction.
Actually, the word "agent" in the legal sense means a "fiduciary". A fiduciary's primary duty is to put the interest of his/her client first. (Doctors, lawyers and accountants are examples of fiduciaries.) The courts have ruled that when real estate licensees act on behalf of others and represent them, they are accountable as fiduciaries.
So what is the purpose of "dual agents?" Certain segments of the real estate industry feel that real estate licensees should not be held accountable as fiduciaries; therefore, they support legislation that creates these categories. Debates regarding Single Agent vs. Dual Agency occur in every state.
In most states, real estate licensees are required to provide buyers with an "agency disclosure", the purpose of which is to disclose to buyers whether they will be assisting them as seller's agents, buyer agents, or some form of dual agent. You should require every real estate licensee to provide you with an agency disclosure and explain his role to you upon first meeting to discuss your real estate needs.
Types of Agencies
Buyer Agency: Agent represents buyer (the client). Buyer agents must use their skills to protect the buyer's interest, including negotiating in the buyer's favor.
Seller Agency: Agent represents seller (the client) but can assist buyer with information. By law, seller agents must use their skills to protect the seller's interest, including negotiating in the seller's favor. Seller agents include listing agents and their cooperating subagents.
Disclosed Dual Agency: Agent seeks permission to offer limited representational services to both buyer and seller on the same transaction. A disclosed dual agent ceases to be and advocate and cannot negotiate in favor of either party.
Facilitators (or) Transaction Coordinators: Sometimes, real estate licensees do not represent either side. They are authorized to provide informational services but have no obligation to protect, advise, advocate, or negotiate for either side.
Questions Buyers Should Ask Real Estate Brokers
If you are confused about whom the agent represents, you can identify his/her role by asking a few simple questions:
If you show me a property I like, will you help me determine what it is worth?
When I make an offer, you will negotiate in my favor? If not, why not?
If your firm represents the seller, tell me the specific services you can provide to me as a buyer?
If your firm represents me and the seller on the same transaction, who would negotiate on my behalf?
As a buyer, decide what type of services you require from an agent. If you want the agent's full range of protective services, you can obtain them only from an agent who represents buyers. In most states, you must make a specific agreement with an agent if you want his/her representation services.
If you decide that you need only information from a real estate broker, then you may find it acceptable to work with any type of agent or facilitator; however, always be careful to not give out information that you want to keep confidential.
Getting Your Money's Worth
Real estate services are valuable; however, make sure you are getting your money's worth. There is an obvious service value difference between buyer agents and disclosed dual agents. An agent who exclusively represents a buyer provides a full range of informational and protective services to the buyer and is accountable for his/her advice. On the other hand, non-agents/ disclosed dual agents offer facilitation services and are unwilling or unable to advocate for either the buyer or the seller. From a consumer's viewpoint, one might well ask why dual agents or facilitators expect to be paid the same as fiduciary agents.
The safe way to buy real estate is by engaging the services of a buyer's agent who will pledge in writing to represent only the buyer throughout the entire transaction. Buyer agents usually have a representation agreement that spells out their obligations to the buyer. The agreement will define the buyer agent's services and the amount and method of payment of his/her fee.
Buyer's agents generally don't add extra fees to the transaction. Their fee is usually built into the transaction in the way of a cooperating fee from the listing agent. The fee is disbursed at closing of the transaction with all other fees pertaining to the transaction. A competent buyer's agent should be able to save you money in terms of time, advice, and negotiating leverage.
When selecting a real estate agent, determine his/her role before you disclose any of your confidential information. Take the time to interview the agent and decide if this agent offers you the services you need. With few exceptions, any agent can show you properties. The important point is making sure you understand the role of the agent who is assisting you. If you want advice and advocacy, then you must engage the services of you own agent. Make the agency decision before you begin the actual search. The purchase of real estate is one of the largest expenditures you will ever make. Why not protect yourself from the beginning with knowledge and competent advice?