By Michael Repka, ESQ | CEO & General Counsel
On a financial level, it is understandable why real estate agents want to represent both the buyer and seller on the same transaction: it means double commission.
Naturally, agents want to justify or rationalize this approach by arguing that they can remain completely objective and fight zealously for both sides. This is simply impossible.
FUNDAMENTALLY, I BELIEVE THAT IT IS IMPOSSIBLE FOR THE SAME INDIVIDUAL TO REPRESENT BOTH THE BUYER AND SELLER ON THE SAME TRANSACTION.
An attorney would not represent both the plaintiff and the defendant in a criminal case. A coach would never coach both Stanford and Cal in the Big Game. No one would play chess against themselves. Similarly, the same individual real estate agent cannot fairly represent both sides of a transaction. While one brokerage can fairly represent a buyer and seller so long as each side has their own advocate, it is impossible for one agent to fairly represent both sides.
There are a myriad of issues that come up when someone attempts to represent both the buyer and seller. First, the agent has access to confidential information about the seller, which could be used to the seller’s disadvantage. Second, a listing agent with an interested buyer would have less incentive to promote the property to other agents or to the public. Naturally, any additional offers that come in decrease the likelihood of the agent getting double commission. Third, the agent knows the seller’s preferences, so the agent would be able to create a more compelling story to help his or her buyer get selected.
Although there is the potential for the buyer to have some disadvantages, taken as a whole, these risks are far lower. All things considered, a buyer will most likely gain a competitive advantage in an arrangement where both the buyer and the seller are represented by the same person who is getting paid double. That is precisely why sellers should be reluctant to let their listing agent represent both them and the buyers on the same transaction. At DeLeon Realty, I only represent sellers to ensure my entire loyalty.
While some listing agents claim that they do not represent both sides of a transaction, sellers should carefully vet how these agents deal with interested buyers. Sellers should be especially vigilant in uncovering undisclosed referral fees. In these circumstances, a listing agent with interested buyers would ask another agent in their firm to present the offer to the seller as if it were that agent’s client. When the transaction closes, the listing agent often receives a large, and potentially undisclosed, referral fee. The sellers in these situations may never be aware of such behind-the-scenes money exchanges occurring within the brokerage.
Some agents state that they will not represent both sides on a transaction, but one must speculate how they can make this commitment if they work with both buyers and sellers. By representing both buyers and sellers, it is inevitable that one of their potential buyers could be interested in one of their listings.
Some agents or offices have the listing agents recuse themselves if they encounter an interested buyer. In other words, the listing agents will stop providing any guidance to the seller and instead assist only their interested buyers. The sellers, in these situations, may find themselves being represented by another agent or by the office’s managing broker. This is not a good solution for numerous reasons, the most obvious being that the listing agent has too much confidential information about the sellers and their circumstances. Plus, when selecting the listing agent, sellers should be able to expect that agent’s loyalty throughout the entirety of the transaction.
Problems with Pocket Listings
Given the desire for agents to make double commission or, for that matter, for offices to make double commission by keeping the deals within the brokerage, many agents and offices encourage sellers to give the agent a period of exclusivity. Under the typical scenario, agents request the opportunity to let their clients know about the property first, and then to spread the word around their office to see if any of the other agents have a buyer who is willing to purchase the property. If this doesn’t result in an interested buyer, then, and only then, will the agent put the property on the market. Some agents convince their clients to agree to this limited exposure because they promise that it will be less intrusive. However, this limited exposure is also likely to result in a lower sales price.
Sellers put a lot of trust and faith in the agent they select to represent their home. These agents have a fiduciary duty to act in the best interest of the client. Suggesting off market listings without fully advising clients of the potential risks associated with this limited exposure certainly may (and probably does) run afoul of the agent’s fiduciary duties. At a minimum, both the agents and the office should offer to waive all of the buyer-side commission if a buyer is identified during this pre-MLS period. If this is the case, then the seller would have to decide whether or not the additional competition would be sufficient to result in a sales price high enough to offset the commission savings. However, without these commission savings, it is very difficult to understand why a seller would agree to such a transaction unless they had a very high desire for privacy and were willing to pay a potentially significant price in terms of a lower sales price.
It should be noted that DeLeon Realty is the only major brokerage in Silicon Valley that waives the entire buyer agent’s side of the commission if a DeLeon buyer agent represents a buyer who purchases a DeLeon listing. We have created our business model with our clients’ best interests in mind as we believe in providing great ethics along with great economics to our clients.