DEAR BERNICE: We found a house we really like — and saw it at an open house. The agent was busy talking to another couple, so she didn’t get our name and number. Can we just write an offer without an agent and have the sellers give us a 3 percent credit? –Jill S.
DEAR JILL: There are several answers to your question, depending upon the type of listing agreement the sellers have with their agent. You can certainly write an offer with or without an agent. Whether you can get a 3 percent credit, however, is an entirely different matter.
1. What type of listing is it?
If the seller signed an "exclusive right to sell" listing, this means that the company who has the listing will receive the commission no matter who sells the property. Even if the owner sells to a friend or family member, if the sale takes place during the listing period, the seller owes the brokerage the commission. This is the most common type of listing agreement. In most cases, the listing broker will post the listing on the multiple listing service and will offer to share a portion (normally half) of the commission with the brokerage that represents the buyer in the transaction. If you write an offer on a property that has an "exclusive right to sell" listing and an agent does not represent you, then the listing brokerage would be entitled to the full commission.
If the listing is an "exclusive agency" listing, the seller has the right to sell the property without the agent and without a commission. The listing agent can still post the listing on the MLS and offer a portion of the commission to the agency who represents the buyer. This type of listing is relatively rare. The reason is that the listing agent is required to disclose that the seller can sell the property directly to a buyer — an agent might bring a buyer to the property and then the buyer might try to cut a deal directly with the seller.
The seller can legally sign an "open listing" with a number of agents. The agent who brings the offer is the one who earns the commission. This arrangement can cause difficulties for almost everyone involved in the process. For example, a seller may sign an open listing with one agency. When it doesn’t sell, the seller decides to sign another with a different agency at a different price, even though the other agreement is still in force. The two different prices may appear on places such as Craigslist. The issue is: Which price is right?
In "one party" listings, the owner is obligated to pay a commission only if he or she accepts an offer from the person(s) named on the one-party agreement. An agent who is representing a buyer may ask the owner to sign a one-party listing for their client only. If that agent successfully negotiates an offer for his or her client, then a commission is due.
2. How much is the commission?
As a buyer, you may not know how much the commission is on a specific property. Again, this depends upon the listing agent. In some cases, some brokerages do not cooperate with other agents. Thus, there is no buyer’s commission at all. …CONTINUED
As mentioned above, most listing agreements provide for a "selling commission" (i.e., a commission paid to the buyer’s agent). In some cases, however, the buyer’s broker has a contractual agreement with the buyer. Rather than sharing in part of the listing commission, the buyer’s broker charges a commission or fee to the buyer.
The seller could also enter into what is known as a "net listing." In this case, the seller agrees to take a specific price. Any amount over that goes toward the broker commissions. Net listings are generally frowned upon, and are outlawed in some states.
3. Dual agency
If you elect to go it alone without an agent, it’s smart to hire an attorney. The listing agent represents the seller and has a "fiduciary duty" to help the seller obtain the best possible price for the property.
When a brokerage (not a specific agent) represents both the buyer and the seller, this is known as dual agency. Dual agency situations are common, especially when you have large national brokerages. Where the problem generally arises, however, is when an individual agent attempts to represent both the buyer and the seller. Regardless of who is paying the commission, it’s smart to have your own representation.
4. Commission kickbacks: legal or illegal?
Depending on what state you are in, it may be illegal for you to receive any part of the commission unless you hold an active real estate license. On the other hand, there are a number of companies such as Costco and LendingTree that offer commission rebates and incentives if you go through them.
Even if sharing the commission with someone who is unlicensed is legal, you may have to make disclosures about the situation that could interfere with your transaction. For example, if your sister is an agent and she agrees to give you half of her commission for buying through her, your state law may require you to make that disclosure in writing to the listing agent, the seller, and to your lender.
While this is not always the case, check the real estate laws and requirements in your local area to see what is legal.
A good buyer’s agent can help you negotiate the best possible price on the property as well as represent your interests during inspections and at the closing. If you find the right person to represent you, it may cost you less than going it alone and getting a rebate.
Bernice Ross, CEO of RealEstateCoach.com, is a national speaker, trainer and author of "Real Estate Dough: Your Recipe for Real Estate Success" and other books. You can reach her at Bernice@RealEstateCoach.com and find her on Twitter: @bross.
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