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On April 23, 2024, Judge Stephen Bough, who presided over the landmark Sitzer | Burnett class action lawsuit, granted preliminary approval to the NAR settlement agreement and has expressed support for the settlement.
As of Aug. 17, 2024, NAR will be removing the buyer compensation field from Realtor-affiliated multiple listing services (MLSs). MLS participants will also be required to work with buyers to obtain written buyer agreements before touring homes. (Here’s some clarification from NAR on what constitutes as “working with a buyer.”)
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Rhonda Hamilton has been teaching the NAR Accredited Buyer’s Representative (ABR) designation course for many years. Given the court’s preliminary approval of NAR’s settlement in Sitzer | Burnett and Moehrl, here is her step-by-step process for getting a buyer agreement signed, along with my personal favorite best practices from some of my other articles.
Editor’s note: Before using any new strategy with prospects, please review your plan with your supervising broker, state and national regulations to ensure there are no conflicts or pitfalls.
Explaining the agreements that govern the transaction
In the past, the listing agreement and the purchase agreement were the two primary documents governing the real estate transaction.
Based on the NAR settlement, Hamilton recommends that you begin your discussion with both buyers and sellers by explaining that depending on the circumstances several types of agreements could govern the transaction, the first of which is the buyer agreement.
Realtor.com spotlights the 111 items a buyer’s agent must complete to close a transaction
On April 18, 2024, Realtor.com announced a new marketing campaign that frames the firm as a “champion of buyers’ agents.” A statement from the company announced its efforts to showcase “an astounding 111-item to-do list that an independent buyer’s agent facilitates during the homebuying transaction.”
This list can be extremely useful on both listing and buyer appointments. It illustrates the complexity of the real estate transaction by clearly describing what those 111 steps are. This data strengthens your argument about the importance of having a buyer’s agent in the transaction to make sure it closes.
It also opens the door for the seller to consider what concessions they may want to make to assist buyers who only have enough money for their down payment and closing costs.
How to respond when the sellers ask about changes to commissions due to the lawsuits
When this occurs, Hamilton recommends that you ask, “What have you heard?” If they respond by saying, “We’ve heard you no longer have to pay a buyer broker fee,” this gives you the opportunity to explain the following key points.
Begin by saying, “Commissions are negotiable, but let’s talk about the buyer-broker fee and whether it’s in your best interest.”
Next, explain that many buyers only have enough money to pay their down payment and closing costs. Here’s the script that I would use:
Agent: Let’s talk about why it might be worth considering offering concessions that the buyer can use to offset closing costs, repairs, buy down their mortgage, or use to pay other costs and fees. It’s important that you focus on positioning your home where it gets the greatest exposure possible that results in the maximum number of showings. Providing buyers concessions can be an important tool in achieving that goal.
At that point, I would then give the seller a printed copy of the Realtor.com 111-item to-do list that describes what a buyer’s agent does to facilitate closing the transaction.
Hamilton suggests that you then say:
Agent: As you can see [from this checklist from Realtor.com], the buyer’s agent plays a major role in the transaction reaching a successful closing. It also serves to mitigate some of the risks on the buyers’ side because they have an agent who promotes and protects their interests.
How to explain to buyers the benefits of signing a buyer’s agreement
I agree with Jeff Lobb that before you do a deep dive into your value proposition or discuss any fees or commissions, you must first determine whether you and your buyer are a good fit.
A classic way to do this is through a buyer interview where you ask numerous questions about what is motivating them to move, price range, location, their household (not “family” due to fair housing rules), lifestyle, the activities they most enjoy when they’re at home, whether they have pets, etc.
Also, be sure to take written notes on what they say. This provides a powerful non-verbal signal that what they’re saying is so important to you that it’s worth writing down. It also helps them to build their trust in you.
Hamilton urges buyer agents to focus on how the agent’s representation benefits their buyers.
As with the sellers, begin by discussing the agreements that govern the transaction. Typically there is a buyer agreement that they sign, there is a listing agreement that the sellers sign, and there is a purchase agreement that covers what the buyer and the seller agreed to in order to purchase the property. Other agreements and documents may be used based on the type of property and transaction that the clients are seeking.
“Next, help them understand how signing a buyer agreement is a benefit for you both. They need to understand that this is how you work, these are your policies, and that you are a professional,” Hamilton said.
“The agreement is going to explain the benefits that they will receive from working with you, which includes your loyalty, maintaining confidentiality, and fiduciary duty throughout the transactional process.”
Here’s the script that Hamilton suggests that you use to explain how this benefit protects the buyer:
Agent: I keep your information confidential. Whatever you tell me stays with me; it never goes anywhere else and is confidential forever. However, if you’re unrepresented, your information is not considered confidential. So, the difference between being represented and unrepresented is huge.
Editor’s note: A buyer agreement may exist simply in order to allow an agent to take a buyer through a property. This differs from a buyer representation agreement which outlines the terms and conditions of the broker-client working partnership. Be transparent about which type of agreement you are using.
Share what it takes to close a transaction on the buyer’s side
At this point, Hamilton recommends that you give the buyer a list of the transactional services you provide to close the transaction.
In addition to your office transaction checklist, I would crosscheck your list against the Realtor.com list of the 111 steps. Select the ones that you actually provide and then combine both documents to create your personal list of transactional services.
Sharing this document is one of the best ways to help them understand the importance of having an experienced, professional agent representing them.
Well, we’ll just contact the listing agent
This is a common objection that you will hear when you bring up the subject of signing a buyer agreement. No matter when this comes up in the conversation, have your transaction checklist available to share in print or from your mobile device.
Here’s the script that I would use.
Agent: As you can see from this checklist, it takes 111 steps to close the transaction, and that’s just on the buyer’s side. On the seller’s side, there are even more, and the listing agent has a fiduciary duty to help their sellers get the highest possible price.
While the transaction checklist is important, their decision to hire you will be based on your personal connection, the value they perceive that you will bring to the deal, and the level of trust you establish. These old-school approaches to building connection and trust are now more important than ever.
Share the complexity, but deliver simplicity
This is one of Hamilton’s favorite quotes and describes what your goal is when you begin your “professional consultation.”
Agent: My role as your exclusive buyer’s agent is to make this complex process as simple as possible for you. I’ll be working in your corner, to make sure that both you and the seller satisfy all the contractual requirements in a timely manner.
‘But I don’t have the money — what am I going to do?’
Here’s the approach that Hamilton uses when this is the case for her buyers:
Agent: Let me explain how we’re going to handle this. Yes, it’s true things have changed, but what’s important to understand is that you do have other options. First, know that you are my top concern. Would you like for me to check prior to showing you any property whether the seller is offering any concessions? At that point, you can decide if you want to see the property.
Even if the seller isn’t offering any buyer concessions, buyer’s agents should let their clients know that they can still ask for one or more concessions in the purchase agreement. Here’s the script:
We can also ask for other types of compensation that can lower your costs. This can be asking the seller to pay your closing costs or to pay for an interest rate buydown that lowers your payments for two to three years. So, you do have options.
Open their mind to other possibilities
Before you meet with the buyer either in person or on Zoom, see if down payment assistance (DPA) is available for any properties they want to see by visiting Realtor.com or Zillow (look under the mortgage tab). Both sites display data from DownPaymentResource.com. Here’s what to say next:
Agent: Have you ever heard about down payment assistance? (Most will answer “No.”)
Prior to our meeting, I checked several listings in the area and price range where you’re looking. What I discovered is that down payment assistance is available on several properties I can show you. What’s really exciting is that the average amount of down payment assistance last year was $17,000!
While I can’t predict how much might be available, I’m here to assist you through the process of finding out whether this is an option for you.
At this point, share one or two properties that have DPA. Both Realtor.com and Zillow link directly to the six questions from DownPaymentResource.com that will let your buyers determine if they’re eligible to receive DPA
Editor’s note: You can be the source of the source of the information, but unless you are a licensed mortgage professional, it is not wise to be advising consumers about financial options.
Go for the close
After you have gone through the process of determining whether you and this buyer are able to work together, that they understand what is required to close a transaction, and how you will search for the best possible options for them, you can then ask them to sign the buyer agreement.
Agent: For most people, their home is the most important financial purchase they will make. If you would like to move forward with locating the right home for you at the best possible terms and price with an agent who is completely committed solely to your best interest, let’s review the terms of the buyer agreement. If the terms are agreeable, you can sign the agreement now and begin the process of finding the right house for you.
While it may seem unclear right now what to do, within the next year, buyer agreements will be the norm and the industry will have figured out how buyer agents get compensated.
In the meantime, master the techniques outlined above, dust off the old-school skills that build trust and connection, and always remember to put your client’s interests first.
Bernice Ross, president and CEO of BrokerageUP and RealEstateCoach.com, and the founder of RealEstateWealthForWomen.com is a national speaker, author and trainer with over 1,500 published articles.
