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Old 11-20-2007, 12:22 AM
 
Location: Columbia, SC
10,889 posts, read 21,844,719 times
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Quote:
Originally Posted by dncngrl1964 View Post

the agent has to prove that he was the reason that the client chose that house
do you really think that the real estate commission is going to vote favorable in a battle for the agent because "he sent them an email of the house?????"

no I don't know what their agreement said...
but i did give sound advise
Only in your opinion have you given sound advice. You think we're hard on you? Doggone right we are. Go back and think about some of the things you've said. YOU put YOURSELF in position to be sued for practicing law/giving legal advice/advising against seeking legal council repeatedly on here. I know it seems like a friendly chat but you never know what you post that could come back and bite you. If we're harsh, it's because we are trying to keep you out of hot water. You have given no "sound" advice anywhere in this thread. I'd also recommend a review or a class on legal pitfalls. If you intend to represent my profession on a public forum I expect you to be knowledgeable and professional.
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Old 11-20-2007, 12:26 AM
 
Location: Southern New Hampshire
4,643 posts, read 13,890,997 times
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Bill, in MASS we have specific representation:

SELLER’S AGENT
A seller can engage the services of a real estate agent to sell his property (called the listing agent) and the real estate agent is then the agent for the seller who becomes the agent’s client. This means that the real estate agent represents the seller. The agent owes the seller undivided loyalty, reasonable care, disclosure, obedience to lawful instruction, confidentiality and accountability, provided, however, that the agent must disclose known material defects in the real estate, The agent must put the seller’s interests first and negotiate for the best price and terms for their client, the seller (The seller may authorize sub-agents to represent him/her in marketing its property to buyers, however the seller should be aware that wrongful action by the real estate agent or sub-agents may subject the seller to legal liability for those wrongful actions).


BUYER’S AGENT
A buyer can engage the services of a real estate agent to purchase property and the real estate agent is then the agent for the buyer who becomes the agent’s client. This means that the real estate agent represents the buyer. The agent owes the buyer undivided loyalty, reasonable care, disclosure, obedience to lawful instruction, confidentiality and accountability, provided, however, that the agent must disclose known material defects in the real estate. The agent must put the buyer’s interests first and negotiate for the best price and terms for their client, the buyer. (The buyer may also authorize sub-agents to represent him/her in purchasing property, however the buyer should be aware that wrongful action by the real estate agent or sub-agents may subject the buyer to legal liability for those wrongful actions).


(NON-AGENT) FACILITATOR
When a real estate agent works as a facilitator that agent assists the seller and buyer in reaching an agreement buy does not represent either the seller or buyer in the transaction. The facilitator and the broker with whom the facilitator is affiliated owe the seller and buyer a duty to present each property honestly and accurately by disclosing known material defects about the property and owe a duty to account for funds. Unless otherwise agreed, the facilitator has no duty to keep information received from a seller or buyer confidential. The role of facilitator applies only to the seller and buyer in the particular property transaction involving the seller and buyer. Should the seller and buyer expressly agree a facilitator relationship can be changed to become an exclusive agency relationship with either the seller or the buyer.


DESIGNATED SELLER’S AND BUYER’S AGENT
A real estate agent can be designated by another real estate agent (the appointing or designating agent) to represent either the buyer or seller, provided the buyer or seller expressly agrees to such designation. The real estate agent once so designated is then the agent for either the buyer or seller who becomes their client. The designated agent owes the buyer or seller undivided loyalty, reasonable care, disclosure, obedience to lawful instruction, confidentiality and accountability, provided, however, that the agent must disclose known material defects in the real estate. The agent must put their client’s interests first and negotiate for the best price and terms for their client. In situations where the appointing becomes a dual agent. Consequently a dual agent cannot satisfy fully the duties of loyalty, full disclosure, obedience to lawful instructions which is required of an exclusive seller or buyer agent. The dual agent does not represent either the buyer or seller solely only your designated agent represents your interests. The written consent for designated agency must contain the information provided for the regulations of the Massachusetts board of registration of Real Estate Brokers and Salespeople (Board).


DUAL AGENT
A real estate agent may act as a dual agent representing both the seller and buyer in a transaction buy only with the express and informed consent of both the seller and buyer. Written consent to dual agency must be obtained by the real estate agent prior to the execution of an offer to purchase a specific property. A dual agent shall be neutral with regard to any conflicting interest of the seller and buyer. Consequently a dual agent cannont satisfy fully the duties of loyalty, full disclosure, obedience to lawful instructions which is required of an exclusive seller or buyer agent. A dual agent does however, still owe a duty of confidentiality or material information and accounting for funds. The written consent for dual agency must contain the information provided for in the regulations of the Massachusetts Board of Registration of Real Estate Brokers and Salespeople (Board).




Quote:
Originally Posted by Bill Keegan View Post
While that may be true in NH, it's not the case here in NJ, and may not be the case in MA. Here in NJ, if you act in a manner consistent with representing the buyer, and are not prevented from being a buyers agent by some other preexisting agreement, perhaps with the seller involved in the same transaction, then you most certainly can represent the buyers interests, and you absolutely can negotiate on behalf of that buyer. I don't personally reccomend this course of action, but I would venture that the majority of r.e. transactions here in central NJ are initiated without the buyer ever signing a representation agreement of any kind.
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Old 11-20-2007, 02:17 AM
 
1,174 posts, read 6,922,506 times
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Quote:
Originally Posted by Valerie C View Post
And Garth, I know you're trying to be helpful, however...
A Realtor or real estate agent can NOT represent your interests UNLESS you are in contract with them as a Buyer's Agent. Otherwise you are a FACILITATOR (or in NH, a non-agent) and as such, you cannot negotiate or act on behalf of a Buyer.
Thank you for approaching the issue so politely. It's very nice to see it.

As to the issue, then how could I have bought different kinds of properties in Calif, NC, and NV without ever signing one of those things? A Realtor represented me in each of those cases, presented my offers, negotiated in some form or fashion but never committed me to anything that wasn't presented in my offer, and kept our conversations confidental.

If what is meant by "negotiate or act on behalf of a Buyer" is to commit them to prices or terms beyond what was written in the offer, I wouldn't want that to happen at all. Talk about a disaster waiting to happen. I may like my Realtor, that's why I chose to use them, but I sure don't trust them with my economic welfare. That's my responsibility, not their responsibility.

BTW, In only one instance did one agent request that I sign a contract to establish them as a buyer's agent. I refused and confirmed that they would not disclose any information to the other side, other than what was presented in the offer, even without the form. Offers were pesented and negotiations happened.

Perhaps it's an east coast thing? I realy don't know about that. Im just guessing. Is that the case with these things? Actually, it wouldn't surprise me since we're dealing with Mass.

In the meantime, don't you agree that it remains a truth that those things were never, ever, required during any real estate transactions for many decades in this nation? I'm not sure when they became in vogue, and it probably varies around the country, but it seems like it's been about 15 years since they began to raise their ugly heads. Is the timeline approximately accurate?

The bottom line is that the form presented by the OP has some big problems. I would go so far to say that the broker and agent are a couple of crooks based upon the limited information available. There's questions about how long the contract remains valid and it locks the buyers into a 2.5% commssion.

What if there was a listing in the MLS that offered 2%? They'd be charged the extra .5% of the purchase price on top of the sales commission. To me that's not right. However, I might agree to it if the agents locked in their 2.5% commission and then rebated .5% on an MLS listing offering 3%. Now that would be fair to both sides, but it didn't happen in this case.

Perhaps it's not kosher in MA to do such things, but that continues to go directly to point. The rules remain stacked against the community and are written to benefit the industry. A buyer's contract is just another example of something established to continue screwing the population and providing extra benefits to industry personnel.

I still don't believe that they have to be used. It hasn't been my experience. I also don't believe that a Realtor that is getting compensation because of my purchase will not provide me with advice and service, keep our communications confidential, insulate me from the other agent, and beat on the other side of the transaction to help make it happen. It's their obligation if they're earning the full commission. It's as simple as that and it's also been my experience.
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Old 11-20-2007, 02:35 AM
 
1,174 posts, read 6,922,506 times
Reputation: 1104
Valerie C,

I read through the list of relationships in your post #62. That's a lot of effort on your part and I appreciate it. Lots of people will benefit from the knolwedge you provided.

I would like to point out one thing about the the different relationships, specifically the Buyer's Agent relationship. If that was was pulled directly from a source, please note that nowhere in the description does it say that a "Buyer's Contract" has to exist to establish the relationship. It only says that "a buyer can engage the services of a real estate agent." A "contract" is not required to "engage" the services of a Realtor.

An agency may require that a contract exist to engage an agent's services, but that is not required with the infomation you provided. It would be a company policy, and not the law of the land. Please don't think I'm trying to fight with you by bringing this issue up. I just don't see the information speaking any differently so I wanted to respond.

Now, I'm not an attorney (Thank God), and I don't think any of the real estate agents on this stite are either, so I would hope that anyone would take my statements as advisement and not gospel. They should do their own research. However, hopefully they can see the truth in my statements and perhaps save themselves some headaches in the future.

Again, thanks for providing all of that info. There's lots of value to it.
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Old 11-20-2007, 06:03 AM
 
Location: Nashville, TN
1,177 posts, read 4,140,608 times
Reputation: 945
Quote:
Originally Posted by garth View Post
Thank you for approaching the issue so politely. It's very nice to see it.

As to the issue, then how could I have bought different kinds of properties in Calif, NC, and NV without ever signing one of those things? A Realtor represented me in each of those cases, presented my offers, negotiated in some form or fashion but never committed me to anything that wasn't presented in my offer, and kept our conversations confidental.

If what is meant by "negotiate or act on behalf of a Buyer" is to commit them to prices or terms beyond what was written in the offer, I wouldn't want that to happen at all. Talk about a disaster waiting to happen. I may like my Realtor, that's why I chose to use them, but I sure don't trust them with my economic welfare. That's my responsibility, not their responsibility.

BTW, In only one instance did one agent request that I sign a contract to establish them as a buyer's agent. I refused and confirmed that they would not disclose any information to the other side, other than what was presented in the offer, even without the form. Offers were pesented and negotiations happened.

Perhaps it's an east coast thing? I realy don't know about that. Im just guessing. Is that the case with these things? Actually, it wouldn't surprise me since we're dealing with Mass.

In the meantime, don't you agree that it remains a truth that those things were never, ever, required during any real estate transactions for many decades in this nation? I'm not sure when they became in vogue, and it probably varies around the country, but it seems like it's been about 15 years since they began to raise their ugly heads. Is the timeline approximately accurate?

The bottom line is that the form presented by the OP has some big problems. I would go so far to say that the broker and agent are a couple of crooks based upon the limited information available. There's questions about how long the contract remains valid and it locks the buyers into a 2.5% commssion.

What if there was a listing in the MLS that offered 2%? They'd be charged the extra .5% of the purchase price on top of the sales commission. To me that's not right. However, I might agree to it if the agents locked in their 2.5% commission and then rebated .5% on an MLS listing offering 3%. Now that would be fair to both sides, but it didn't happen in this case.

Perhaps it's not kosher in MA to do such things, but that continues to go directly to point. The rules remain stacked against the community and are written to benefit the industry. A buyer's contract is just another example of something established to continue screwing the population and providing extra benefits to industry personnel.

I still don't believe that they have to be used. It hasn't been my experience. I also don't believe that a Realtor that is getting compensation because of my purchase will not provide me with advice and service, keep our communications confidential, insulate me from the other agent, and beat on the other side of the transaction to help make it happen. It's their obligation if they're earning the full commission. It's as simple as that and it's also been my experience.
Garth, a signed Buyers Representitive Agreement is required by state law in Tennessee. The state law came about in the 90s due to the increase in consumer complaints about agency issues and representation. The written agreement spells out both the agent's and client's duties and responsibilities.
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Old 11-20-2007, 06:05 AM
 
Location: Cary, NC
43,015 posts, read 76,510,473 times
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Garth,

There is a hole in your experience, whether it is time or memory, at least in North Carolina.
As a licensed North Carolina real estate agent, I MUST have some sort of representation agreement with a Buyer to write and present an offer for them.
It can be exclusive or non-exclusive. It can be in dual agency.

As a Realtor, I have unlimited access to standard forms, designed by the NC Bar Association and the NC Association of Realtors. These standard agreements are designed to offer protections to both parties, Client and Realtor.
Without a Buyer Agency agreement in place, an agent is compelled by NC real estate law to convey any information that agent learns to the Seller. That agreement can be verbal until the time an offer is written. But before that offer is presented to a seller, there will be a written and signed agency agreement.

The only option left is Seller Sub-Agency. Not Acceptable.
When I list a property for sale, the contract says I will not pay a commission split to a Seller Sub-Agent. Never(and we are taught to avoid absolute terminology. )
I do not want to talk to a sub-agent.
If an agent is so inept or lazy they will not get a Buyer agency form signed, then they are too dangerous to be involved in a real estate transaction. That drags too much liability into the transaction for my Seller client. And in Sub-Agency, your confidential information has absolutely no protection from disclosure to the other party. The Sub-Agent is representing the Seller, and is compelled to convey what they learn about the Buyer.

In any of the above agency situations, as a Realtor or a licensed agent, I must review with you Working With Real Estate Agents, and I must ask you to sign acknowledgement of that conversation. The signature panel is built into the brochure.

From that brochure:
"But if you decide to make an offer to purchase a particular property, the agent must obtain a written agency agreement. If you do not sign it, the agent can no longer represent and assist you and is no longer required to keep information about you confidential."

Last edited by MikeJaquish; 11-20-2007 at 06:51 AM..
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Old 11-20-2007, 08:20 AM
 
13 posts, read 98,046 times
Reputation: 13
Quote:
Originally Posted by Valerie C View Post
You know what? After reading post #17 of this thread, I just don't know!! I would say to show it to a real estate attorney.

Know what else? I think that this is ESPECIALLY despicable considering that this place is touting itself as a BUYER'S AGENCY!! And maybe BuyerInMA needs to call Hank... WHDH-TV - Newsteam - Hank Phillippi Ryan

Thank you Valerie. It is great to get your perspective. I am keeping that as a last resort but I would not say it is out of the question that it might come to that.. We definitely feel like the agreement and termination requirements are pretty underhanded now that we have seen some standard buyers agency contracts.
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Old 11-20-2007, 08:25 AM
 
Location: Southern New Hampshire
4,643 posts, read 13,890,997 times
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Good point Garth. That info is taken from a DISCLOSURE form (one that discloses the various Agency relationships in Massachusetts). What it doesn't say in this form is HOW an agency relationship is formed (which is by agreeing to a Buyer-Agency agreement). This language is found on the Facilitator and Buyer Agency Agreement.

Legally, a non-agent (facilitator) is simply a door opener, who is unable to share information on days on market, motivation for selling, financial info, etc, price reductions, etc. but can only disclose known material facts. This is fine for the "casual shopper" or someone who is getting an idea of what is on the market. When it comes time to write a contract (offer to purchase or Purchase and Sale) you DO want representation from an agent.

Many people are justified in being extremely cautious with signing any sort of contract, and the situation that BuyerInMA brings up is a good example of why this is so! In my opinion, a person with personal ethics will behave in an ethical manner personally and professionally, no matter WHAT the "official" relationship is...

In this case, the Principal Broker has had these "Buyer Agreement Forms" drawn up specifically to protect THEIR interest. These are NOT standard Mass Realtor forms, and I honestly don't know how they would stand up in court. I'm going to print them out today and bring them up at our office meeting. This business model portrays themselves as being BUYER'S AGENCY when in reality, the Buyer may have ZERO recourse. Again, I would recommend LEGAL ADVICE in this case, since these are very much NOT standard Realtor forms that we see every day.

I have more to say, but gotta run
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Old 11-20-2007, 10:40 AM
 
1,174 posts, read 6,922,506 times
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Thanks for the info MikeJaquish,

I went back to my file on the NC property and found no Buyer's Contract, and I keep every little piece of paper. I also recall discussing such a thing and refusing to sign such a contract for all the reasons I've already discussed. Issues of confidentiality were discussed and, although I wasn't present upon presetation of any offers, I feel that my requirements were met.

At least there was no indication that they were not met. Perhaps that may also have to do with the fact that I tell the Realtor very little. Stuff they don't need to know, they don't need to know. I know what I want and can afford, explain that to the agent, look at the MLS with them in their office and usually run my own queries, and then tell them what I want to see. In fact, years ago I would often take the MLS book home with me, before there was a computerized system, look through it and then do drive-bys on the homes to establish alist of properties I wanted to see. Remember those days with the thick book and only a black and white picture? In any case, there's no need for a Realtor to be in possession of any financial or situational knowledge about me beyond the fact that I'm both willing and able to make a purchase.

I don't disbelieve you at all about such a contractul reqirement in NC. Since that is the case in that state, I will regret ever having to go through a buying process again. It might be another fight. Just look at what the OP was required to sign. That's a prime example of why such things are bad for the consumer.

It appears that a seperate law as you dscribed in NC is forcing the use of such a form. However, it doesn't have to be that way to establish a relationship. It just happens to be that way now, due to the decisions made in that state.

I know where this came from. The NAR is a big organization and a political monster that pressures politicians for policies and laws that benefit the industry. They are not a consumer organization. They are a trade association who's entire reason for being is to make things better for it's membership, and only to benefit the consumer in the most minimal way in order to deflect developing problems. I wouldn't doubt that they're the motiviation behind the codification of such legislation.

Oh well, enough is enough, right? My soapbox is broken anyway and I'm sure people are tired of this stuff. I just hope that the OP can extract themselves from the situation without any damage and that they can glean some information from all of us to aid them in that goal.
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Old 11-20-2007, 11:40 AM
 
Location: Martinsville, NJ
6,175 posts, read 12,889,122 times
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Quote:
Originally Posted by Valerie C View Post
Bill, in MASS we have specific representation:

SELLER’S AGENT
<SNIP>

BUYER’S AGENT
<SNIP>
(NON-AGENT) FACILITATOR
<SNIP>
DESIGNATED SELLER’S AND BUYER’S AGENT
<SNIP>
DUAL AGENT
<SNIP>.
Not very different from what we have here in NJ, except that there is no designated agency here, and we use the term transaction broker in place of Non agent Facilitator.
My point, and I should have explained it more clearly in my first post, is that there can be, and often is, an IMPLIED or ASSUMED agency. If the agent ACTS in a mannner consistent with representing a buyer, they buyer has the right to assume that they are in fact being represented, unless they are told otherwise, even if they have not signed a representation agreement. There is legal precedent in may juristictions to support this (I recommend asking an attorney about this in your neck of the woods.)
If the consumer believes theat you are their agent, even if they have never signed something confirming this fact, they may have the right to expect agent level service from you. Be careful what you say & how you say.

(Wow. I've forgotten exactly what this had to do withthe original thread. Hmmm.)
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