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Old 08-04-2012, 07:07 AM
 
Location: Cary, NC
31,603 posts, read 55,320,924 times
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Quote:
Originally Posted by manderly6 View Post
I have to say I am surprised that how much the buyer's agent gets is not set and stated on the listing agreement in places. That seems pretty important.
Yep. I forget that some folks don't document the co-broke offering.
We do.

 
Old 08-04-2012, 08:01 AM
 
Location: DFW - Coppell / Las Colinas
29,930 posts, read 34,535,636 times
Reputation: 35922
Quote:
Originally Posted by manderly6 View Post
I have to say I am surprised that how much the buyer's agent gets is not set and stated on the listing agreement in places. That seems pretty important.
Quote:
Originally Posted by MikeJaquish View Post
Yep. I forget that some folks don't document the co-broke offering.
We do.
We don't.. as mentioned it's whatever the market will determine. Sometimes we increase the BAC to possibly attract more buyers agents as an incentive or lower it if needed. We are (most of the time) aware that we must offer a competitive BAC %.

Just goes to show that every state and every RE Broker determines their methods & policies. It dangerous for people like the OP to assume with what they determine "Should be fair".
 
Old 08-04-2012, 08:43 AM
 
Location: Needham, MA
6,324 posts, read 9,029,761 times
Reputation: 5324
Quote:
Originally Posted by MikeJaquish View Post
Yep. I forget that some folks don't document the co-broke offering.
We do.
Interesting! This is one of my favorite things about this forum: hearing how it's done in other parts of the country. We list the co-broke commission right in the listing contract and of course it's also in MLS.
 
Old 08-04-2012, 08:47 AM
 
Location: Central Texas
19,883 posts, read 36,393,146 times
Reputation: 21321
I have to disagree with Rakin here. The Texas Association of Realtors listing agreement that we use DOES spell out the Broker Cooperation, whether it is to be in percentage or dollars, how much a member of the MLS will get versus how much an agent who is not a member of the MLS will get (the latter gets less, in our office, because if they're not a member of our MLS they do not have access to the house and are usually Uncle Bob from Houston who will write the offer but we'll do all of the house opening, title company visiting, and other myriad details on the buyer's side that a member of our MLS would ordinarily do). This is all in the TAR listing agreement. There are blanks where we fill in what's agreed on.

I haven't used the TREC form in so long I can't speak to that one.
 
Old 08-04-2012, 09:42 AM
 
Location: DFW - Coppell / Las Colinas
29,930 posts, read 34,535,636 times
Reputation: 35922
Quote:
Originally Posted by TexasHorseLady View Post
I have to disagree with Rakin here. The Texas Association of Realtors listing agreement that we use DOES spell out the Broker Cooperation, whether it is to be in percentage or dollars, how much a member of the MLS will get versus how much an agent who is not a member of the MLS will get (the latter gets less, in our office, because if they're not a member of our MLS they do not have access to the house and are usually Uncle Bob from Houston who will write the offer but we'll do all of the house opening, title company visiting, and other myriad details on the buyer's side that a member of our MLS would ordinarily do). This is all in the TAR listing agreement. There are blanks where we fill in what's agreed on.

I haven't used the TREC form in so long I can't speak to that one.
You are correct, thanks. Our Company Listing agreements do not spell out any specific % and who or how they get paid is more covered in our local MLS rules. We just charge a % or fee and what we offer is left up to the agent / company. We do know we must be competitive and offer the going rate.

Goes to show a great variation even within a state.
 
Old 08-04-2012, 11:11 AM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,674,573 times
Reputation: 3809
Quote:
Originally Posted by Silverfall View Post
...

How about the other agents? What are your MLS rules regarding variable commissions.
In the Phoenix area ARMLS there is a field in the mls sheet that asks if there is a variable commission rate. The agent only has to disclose that the rate is variable. However, the agent must disclose the amount if asked by the other agent.

Arizona law states that the purchase contract should not be used to address broker compensation or commission issues.

Quote:
quite from K. Micheller Lind, Esq., General Counsel Arizona Association of Realtors:.....A purchase contract is an agreement between a buyer and seller outlining each party's
rights and obligations in the sale of a property. The contract should not be utilized to negotiate or renegotiate the rights and obligations of third parties, including the broker and salespersons
This law is probably similar in other states. It can be researched.

The OP in the email appears to be using the email as an addendum in which s/he is attempting to use the contract to renegotiate a third party contract (contract between seller and listing broker) which is illegal in AZ.

Since the email is not an addendum, the listing agent has no obligation to forward the email to the seller.

If it were an addendum, then in AZ that would make the contract illegal. The agent should submit the offer with the "addendum" to the seller and advise him that the buyer is attempting to renegotiate a third party contract, which is illegal, and before countering the offer, advise the seller to obtain legal advice from a real estate attorney. (If the contract is illegal, then it may be considered void, or at least voidable by one of the parties; so it my carry significant risks to everyone involved)

Regarding advising the seller if there is a buyers agent:
In the Arizona contract there is a space for the buyers agent to provide their contact and company information, plus a field to select that they are representing the buyer. If there is no agent shown as buyers agent, then it's obvious there is no BA.

In addition, the buyers agent submits, with the contract, a standard Real Estate Agency Disclosure and Election form, signed by the buyer which states that the agent is the Buyers agent.

Listing Agreement:
We have a new listing agreement in AZ and it states (paraphrased for brevity):

Quote:
COMMISSIONS. If Broker produces a ready, willing and able purchaser in accordance with this Listing Contract, during the exclusive term of this Listing Contract, Owner agrees to pay Broker a commission of ____x% of the Purchase Price


COOPERATION WITH AND COMPENSATION TO OTHER BROKER
S. With regard to this Listing Contract, Broker intends to cooperate with all other brokers except when not in Owner’s best interest: and in the case of a purchase, to offer compensation in the amount of xxx % of the gross purchase price to a buyer’s broker, who represents the interest of the buyer(s), and not the interest of Owner in a transaction;
The language above is an agreement for the seller to pay the listing agent x% for selling the home. The money is owed to the listing broker. The listing agent is agreeing to cooperate with other "BROKERS", and the mls listing sheet is the contract between the cooperating broker and the listing agent.

There is no agreement to cooperate with unrepresented buyers. It states the amount that the listing agent will pay the buyers agent.

It is illegal to pay commissions to an unlicensed unrepresented buyer. Therefore, they are not mentioned in the listing contract. Absent any additional terms in the listing agreement, if there is an unrepresented buyer, the entire commission amount is owed to the listing agent in the event the buyer is unrepresented.

I read that the OP is wanting to take a portion of the listing agents commission because he is unrepresented. An unrepresented buyer is not entitled to any portion of the listing agents commission, and to repeat, it is illegal to attempt to renegotiate a third party agreement within a purchase contract.

The OP may have been aware of that being illegal, hence the reason he wrote the email instead of putting it in an addendum.

I would need to see the email before deciding how I would handle it. But if it's worded the way I suspect it is, I may forward the email to my seller and advise my seller to seek the advice of a real estate attorney before taking any action, because whatever action he takes, (besides rejecting the offer), may risk legal consequences.

In addition, I would consult with my attorney, to provide me with legal advice on how I should proceed. I may even get that advice prior to forwarding the email.

And I would mention to my seller that since the buyer is attempting to have the seller renegotiate the listing contract, how is this buyer going to treat a contract signed between the seller and this buyer. He could be renegotiating up to the closing table, which could cause the transaction to fall through, and the seller would have lost much valuable marketing time.

From what I'm reading here, and the way I'm interpreting what I'm reading, my seller should not even respond.

Am I greedy? Yes----I expect to be paid what I contracted for---No More-No Less.

Is the OP greedy? Yes
---he is trying to take part of my earnings, which he is not entitled to.

If he wants part of someone's commission, then he can hire a buyers agent who is willing to rebate something to him. But don't try to screw with my contract. It won't work.

Hopefully all the other agents will have the same legal positions about dealing with contracts, so they can keep their sellers (and buyers) out of legal trouble.

And hopefully all the readers here who are real estate laypersons will understand that there is much more to real estate than putting a sign in the yard, or showing a buyer a home. And the chances of a buyer or seller getting sued by the other party is very high in today's litigious society. Consequently, they should have a working knowledge of real estate law, contracts, and real estate practice, prior to taking some of the actions that are being attempted by anonymous persons on a public forum.

Last edited by Captain Bill; 08-04-2012 at 12:32 PM..
 
Old 08-04-2012, 01:55 PM
 
397 posts, read 491,459 times
Reputation: 210
Quote:
Originally Posted by Captain Bill View Post

The OP in the email appears to be using the email as an addendum in which s/he is attempting to use the contract to renegotiate a third party contract (contract between seller and listing broker) which is illegal in AZ.

Regarding advising the seller if there is a buyers agent:
In the Arizona contract there is a space for the buyers agent to provide their contact and company information, plus a field to select that they are representing the buyer. If there is no agent shown as buyers agent, then it's obvious there is no BA.[b]
So if I understand you correctly...

Your seller would know that a buyer is "unrepresented" by virtue of a blank BA contact section in the "Arizona contract" which is presumably created and sanctioned by the AAR and it's attorneys. Thus if a buyer conveys his unrepresented status via the AAR contract it is legal. However, if he sends the seller an email clarifying his unrepresented status this is illegal?

Quote:
Am I greedy? Yes----I expect to be paid what I contracted for---No More-No Less.
Agree with you in theory. However, I have a problem with the fine print of most LA and circumstances under which this contract is signed.

Assume your Arizona (AAR) contract commits your seller to pay you:

1) Full commission if you (or someone else including the seller) delivers a "ready, willing and able purchaser", irregardless of whether the home actually sells.

2) Half of EM if the buyer defaults.

3) Full commission if a buyer without an agent purchases the property.

Do you review these "gems" with all your sellers prior to having them sign the LA? Or do you relegate these clauses to your subconscious like a previous posting agent (Post #105, Mike from NC)?



The RAs out there can try to skirt this issue by arguing that contracts vary by state, but I think most state LA's include these provisions. So...do RA's out there feel obligated to discuss these details (#1-3 above) with their sellers prior to signing or do you think it is up to your seller to glean these details from the contract on their own?
 
Old 08-04-2012, 02:24 PM
 
Location: Needham, MA
6,324 posts, read 9,029,761 times
Reputation: 5324
Quote:
Originally Posted by RE Skeptic View Post
The RAs out there can try to skirt this issue by arguing that contracts vary by state, but I think most state LA's include these provisions. So...do RA's out there feel obligated to discuss these details (#1-3 above) with their sellers prior to signing or do you think it is up to your seller to glean these details from the contract on their own?
Uh-oh! He's got us boys! We're all money hungry, deceitful real estate agents just trying to make a buck and darn it if someone gets hurt in the process well then I guess that's just collateral damage.

I go over the entire contract with my clients. Anything and everything they sign during the process is fully explained to them until the point where they completely understand it. If the client's timeline permits it, I leave the contract with them ahead of time so that can read it and prepare questions or I also suggest if they want they can review it with an attorney. The listing contract I use is barely more than 1 page. It's not written in complex legalese and it's very easy to understand. Their needs come first 110% of the time. What I want and what I need never ever enters the picture. I have on some occassions recommended to my seller to take another offer rather than the one my own client is submitting. I would make more money, but the other offer was the right one to accept.
 
Old 08-04-2012, 02:28 PM
 
Location: Central Texas
19,883 posts, read 36,393,146 times
Reputation: 21321
RE Skeptic, I've already answered your question for myself; I (and every agent I personally know) go over every clause in the listing agreement and every document that they need to sign in the process of getting their house sold or buying a house. In addition, every document contains information that agents are not attorneys and that they are free to and should contact an attorney if they have questions about anything in the contract. I also tell them this verbally as well as the written advice on the contract (which I go over with them just like every other clause).

You seem to think that most sellers are idiots, too, based on the idea that they will blithely sign an agreement without knowing what they are signing - AND that you have to spell out to the seller the benefits to you of them renegotiating a contract they have with another party, a contract to which you, yourself, are not a party. Maybe some will, but the vast majority will not, in my experience, and will have quite pertinent questions if they don't understand what they're signing. I am beginning to wonder, however, if you are so focused on getting a portion of someone else's paycheck that you're unable to see that that's what you're doing and that everyone, including most sellers, are going to be sharp enough to see that from a mile away.

I suspect, though, as someone else said, that you'd be pretty sharp about seeing it if it was a client or customer of your employer's suggesting to the employer that it would be a really beneficial thing to them (the customer) if the employer cut your paycheck and gave that money to the customer.

Bottom line, you're not as good at this negotiation thing as you seem to think you are. If, indeed, this post is all about that, something I'm beginning to doubt based on your posts.
 
Old 08-04-2012, 02:47 PM
 
Location: Pinal County, Arizona
25,107 posts, read 34,366,957 times
Reputation: 4893
Quote:
Originally Posted by Zyngawf View Post
Really, what if they insist on offering ten dollars for someones house? Wouldn't you feel like an idiot calling your seller to present that?
When I take a listing, I tell my seller that if I get an offer for $1.00, I must present it - It is NOT my property that's for sale.

If a seller objects to that, I explain their options including giving me WRITTEN instructions that can include limitations on the types of offers to be presented - only written offer, offers not below XYZ dollars and so on.

If an offer comes in that are not included in these instructions - I explain the limitations etc.

Works out well.
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