The Ummel Verdict Is In - Buyers Need to be Careful in Choosing Their 'Buyer Agent'

Here is a news update on the Ummel case as reported by the National Association of Exclusive Buyer Agents:

AVONDALE, Ariz., April 17 /PRNewswire-USNewswire/ -- The verdict is in and a California jury has decided that a real estate agent did not violate the law by failing to disclose to his buyer client information about comparable homes on their same street that were selling for substantially less money. In a case of first impression, Marty Ummel attracted national attention when she sued her buyer agent and his company, for allegedly duping her and her husband into overpaying for a $1.2 million home."Not disclosing comparable market data to a buyer client may not have been perceived as a violation of law by this jury, however it would certainly violate the Code of Ethics of our association," stated Barry Nystedt, the President of the National Association of Exclusive Buyer Agents (NAEBA). "Real Estate practitioners in traditional real estate firms that usually represent sellers may not have the commitment and skill to fully protect the financial interests of the home buyer. Home buyers would be smart to hire an agent from a firm that specializes in representing only home buyers and subscribes to a higher standard of performance," Nystedt added.

Read full press release.

United We Stand, Divided We Fall: Buyer Agency and the Fragmented World of Real Estate

In a recent Accredited Buyer Representative class, it came as no surprise that out of approximately 36 attendees, there was only one exclusive buyer’s broker in attendance. Although most of the information presented in the class was informative, insightful, and the content was well-delivered, it was alarming when two Realtors announced to the class--on two separate occasions--the “old saying” that “buyers are liars.” The first thought that came to mind was, “why?” If these Realtors really believe that buyers are “liars,” then why are they even in this class to begin with? Unfortunately, with the exception of a very small few, this is a pervasive belief among traditional agents and brokers—a belief not shared by those who have chosen to serve buyers only.

This was a three-day class, and each day was eight hours in length. It was just enough time to experience the “niceties” of certain traditional Realtors, who demonstrated their narrow-minded worldviews, values, and norms. Some had behaved abrasively, as well as, condescending. They revealed their own prejudice beliefs, as many before have done in the past, that unless one is part of the herd, they do not deserve any professional courtesy.

It was an eye-opener to see the friendly expressions of certain Realtors suddenly change into seething animosity, when told of the decision to represent buyers only. You would have thought a mortal sin had been committed. The consumer value of having the option to avoid dual agency completely did not compute within the minds of these people.

Some traditional agents have gone as far as to say that dual agency is not even an issue, as long as consumers liked them. However, it is an issue when the dual agent cannot negotiate for either side; or when a dual agent company has to remain neutral in the midst of a transactional conflict. What are dual agents being paid for, if they cannot provide the valuable service of negotiation, and if they cannot provide advocacy for neither side?

Now we turn our attention to the culture of exclusive buyer agency. This culture is small, but growing—struggling for recognition and acceptance by Realtor associations that normally favor traditional real estate brokerages. The associations they struggle with do little to educate the public about the option of exclusive buyer agency. Furthermore, they add to the confusion by blurring the real meaning of this agency option. For example—the Washington Association of Realtors has a standard pre-printed form called an “Exclusive Buyer Agency Agreement,” yet there is a clause within this form that gives the option to consent to dual agency. If an agreement is truly for exclusive buyer agency, then dual agency should not even be a part of it, because dual agency is a non-issue where this agency option is concerned.

Honestly, a buyer agency agreement becomes exclusive only when the option of dual agency has been removed--otherwise, it is just a buyer agency agreement.

Delving further into the world of exclusive buyer agency, we see a rift within the fragment. This culture is centered on an association that has let former members down in the past. This association is NAEBA. Instead of unity and camaraderie, there were arms-length adversarial attitudes within the group, and no support—as promised in their membership literature. When an exclusive buyer agent breaks away from the disappointing experience, they are then discredited for not belonging to the organization anymore. For example—in a recent Blog—an exclusive buyer’s broker touted the news of an article he claimed was recommending that buyers only work with exclusive buyer agents who are members of NAEBA. However, upon review, it was realized that the article only mentioned that buyers can find an exclusive buyer’s agent through NAEBA. The article made no specific endorsement advocating the sole use of NAEBA members.

It needs to be said that not all professional exclusive buyer agents are NAEBA members, mostly for the reasons already mentioned above.

The final fragment we will explore in the real estate industry is the culture of the discount brokers. Like the exclusive buyer agents, they are new to the industry, and they have also drawn the ire of the industry for going against the traditional ways of doing business. However, they have taken an adversarial position against all Realtors, including buyer agents, and inadvertently exclusive buyer agents. They have unfairly shrouded the entire industry under a cloak of suspicion—leading many consumers to believe that they are the only credible option available. Because certain discount brokers have ties to the media—which is notorious for delivering biased information—they are able to spread their inaccuracies nationwide. They profess that consumers are victimized by the industry, yet they fail to take into consideration that not all real estate professionals are alike. They are content to make sweeping generalizations about matters they are not fully informed on. Certain discount brokers contradict themselves by claiming that they do not practice dual representation (dual agency), yet if a buyer purchases a property through them, and the property is listed with their company, this is dual representation on the part of the company.

Bottom line:

The real estate industry is about serving the best interests of our clients, period. It is not about our egos. It is not about our “net gross sales last year,” nor is it about out-selling “Sally Sells-A-Lot” next door. It is not about spreading deceitful propaganda and half-truths to induce consumer action, and it is not about suppressing valuable agency options—nor alienating the practitioners that choose to make these agency options available. It is only about the welfare of consumers, respecting their right to be represented, and respecting their freedom to choose how they want to be represented. They have a right to full disclosure as to what their agency options are, because without full disclosure, they cannot make fully informed decisions on matters that can materially affect them.

Food for thought:

Will the real estate industry ever gather and reconcile its fragments for the sake of consumer welfare? Will real estate professionals ever learn to respect each other, and the diverse cultures that have evolved within the industry? Will old-school Realtors ever learn to understand that these diverse cultures are no less deserving of professional courtesy and mutual respect? Will certain discount brokers ever stop spreading inaccurate propaganda and half-truths to induce consumer behavior? Time will surely tell.

Positive change in the real estate industry will require integrity, diplomacy, transparency, tolerance, mutual respect, and understanding. Until we have these ingredients, we cannot fully serve the best interests of consumers, nor can we become a united industry.

The Mortgage Meltdown, and What it Means for Homebuyers

We live in chaotic times, and now with foreclosures on the rise, this chaos has extended itself to the mortgage market. The impact of this has caused mortgage investors to lose confidence, which has reduced the amount of cash available for new loans. A recent news piece by the Associated Press reported that, “The shocks to the industry are siphoning lenders and cash away from the market, which reduces competition and restricts people’s access to home loans.”

With the loss of available cash for new loans, lenders have tightened their lending requirements, and some lenders have been forced to go out of business—filing for bankruptcy. According to an article by RISMEDIA entitled Mortgage Mayhem, the reason for the fiasco in the mortgage market, “…is largely based on the fact that market conditions in both the secondary mortgage market and the national real estate market have deteriorated to the point that many mortgage businesses are no longer viable or as profitable as before.”


So what does this mean for homebuyers?

It means that it is now more difficult for buyers with less-than-perfect credit to qualify for a mortgage. The Associated Press had quoted George Hanzimanolis, president of the National Association of Mortgage Brokers , “lenders have raised the minimum credit score that qualifies for financing. Most lenders now require bigger down payments, he said, and are eliminating exotic loans or making them more difficult to qualify for.” He mentioned, “The silver lining is that people with good credit who can document their income have the same access to home loans as they did a year ago.”

First time homebuyers will have a tougher time buying their first home, but hope is not completely lost. The condition in the mortgage market now requires first-timers to do a little more planning, and more saving for the future. Buying a home is not only one of the biggest financial investments of a person’s life, but it is also one of the biggest responsibilities. It is worth taking the extra time to plan and wait—making sure that all financial considerations are in order, saving enough money for a larger down payment—with some savings left over—and making sure that credit scores are brought up to justify a lower interest rate.

If a buyer's income is good, but for whatever reason, they cannot qualify for a mortgage, then there is the option of lease-to-own. This is a good way for buyers to be in a home, while improving their situation to qualify for a mortgage in the future. Considering the current condition in the mortgage market, more sellers might be willing to entertain such an arrangement if buyers can demonstrate that they have a steady job situation, and they can support the monthly lease payments.

Buyers will benefit in the long-run from the stability that results with making smart financial decisions. Timing is everything, and this principle certainly applies to buying real estate.

Open Response to Article: Discounters are Changing Ways of Doing Business

This is in response to an article dated July 29, 2007 entitled, "Discounters are changing ways of doing business."

In particular, to the following:

"The primary source of contention between the rest of the real estate industry and Redfin is that the company lists 'days on market' and price reductions on its Web site - information that agents do not offer until they have an exclusive contract with a buyer."

There seems to be some confusion here, because the majority of real estate professionals do not use exclusive buyer agreements with buyers. However, exclusive listing agreements are regularly used with sellers to list their properties.

Exclusive buyer agency agreements are mostly, if not totally, used by exclusive buyer agents and brokers, who work for companies that only represent buyers. These companies never take listings. The exclusive buyer agency option helps buyers avoid dual agency completely. There are some exclusive buyer offices that will offer FULL service and representation to buyers for the same amount of money a company like Redfin charges for limited services.

A company like Redfin also takes listings, so when a buyer makes an offer to buy through such a company, and the same company holds the listing of the subject property, the company becomes a dual agent. Dual agents are required to remain neutral between buyers and sellers in the same transaction. This can become a problem when a conflict arises between the two parties. Buyers and sellers must give their mutual consent to dual agency, which is unwise because it is a conflict of interest.

Dual agency is a conflict of interest, because when a buyer chooses an agent, they will expect their agent--and their agent's company--to represent their financial interests. Buyers want the lowest price possible, at the best possible terms in their favor. Conversely, a seller will expect their agent--and their agent's company--to negotiate for the highest price possible, at the best possible terms in their favor.

When a buyer and seller are represented by the same agent, or respectively by two different agents of the same company, these expectations are conflicting. This is dual agency, aka. dual representation. More consumers are becoming aware of the risks surrounding this agency option.

More Information Sources About Dual Agency:

http://www.dos.state.ny.us/cnsl/dualagcy.html

http://www.realestatelawyers.com/Dual-agency.cfm

http://www.usdoj.gov/atr/public/workshops/rewcom/213172.htm

Fair Fight in the Marketplace

This film is brought to you by the collaborative efforts of: Street Law, Inc, the American Antitrust Institute, Filmmakers Collaborative, and the Constitutional Rights Foundation.

This is a documentary about what antitrust laws are, and what they mean to everyone—consumers, small businesses, entrepreneurs, free enterprise, etc.

It is now airing on PBS—but, if it is not airing in your area, you can watch it here. Before positive changes can happen, we must all be aware of the problem—and most importantly—we must care about the problem, because antitrust affects us all in many different ways, and in many different industries; including the suppression of exclusive buyer agency in the real estate industry.

Learning resources are available by visiting www.fairfightfilm.org/learn.html




If you would like to help--spread the word about this film!

Why Buyers Do Not Pay Commissions on Listed Properties

A real estate company is misinforming the public by saying that buyers actually pay for real estate commissions on listed properties. According to information on their web site, "the buyer is the only person bringing a checkbook to the closing, and both commissions come out of the money the buyer provides."

While it is true that buyer's bring the money to the table, the seller's costs of sale are not the buyer's expense or responsibility. If buyers actually paid commissions, they would be paying the purchase price PLUS sales commission. However, this is not the case with listed properties.

The truth is that commissions on listed properties are actually deducted from the seller's side of the closing statement--not the buyer's side.

This means that the seller receives the purchase price first, and then his or her costs of sale are simultaneously deducted to result in net sale proceeds. The notion that buyers pay commissions on listed properties makes about as much sense as employers paying for their employee's income tax deductions. For example--an employee's paycheck--he or she must receive his or her pay first (aka. gross pay) before taxes are simultaneously deducted to result in the employee's net pay.

Likewise, buyers do not pay the seller's costs of sale on listed properties, because these costs are deducted from the seller's gross sale proceeds, which gives them their final net sale proceeds.

It needs to be said that inciting consumer bitterness with skewed information is wrong. It is better to bring about positive changes in the real estate industry without distorting the truth. Buyers can save money by negotiating buyer rebates with agents or brokers in states where it is allowed. It is not proprietary to the company mentioned in this news story.

A True Greater Good in the Real Estate Industry

There was a recent blog from a Realtor discussing the "Skyhook Theory" in real estate. He basically explained that this theory encompasses the principle of finding a greater good in the things we do--and that aspiring to do this makes us better people. While I earnestly believe and agree that finding the greater good in all things is the ideal way to be, the reality of the situation in the real estate industry, is that the greater good is generally neglected when it comes to consumers.

The greater good in the sense of the real estate industry is not just about touting superior service, because a higher level of service should go without saying. I believe that the greater good goes much deeper than that. It should be about ensuring equal footing for buyers and sellers alike. It should be about real estate professionals doing everything they can within their power to prevent either side from being exposed to dual agency--which is a conflict of interest.

It should mean that traditional real estate companies demonstrate a willingness to relinquish the age-old tradition of double dipping--which happens when one real estate company collects commissions from both sides of the same transaction. It should mean that the real estate industry, as a whole, be completely honest with real estate consumers about all available agency options--including Exclusive Buyer Agency.

Not so long ago, real estate was ruled by seller representation. This is no longer the case. The real estate industry is, and has been, transforming to a level playing field between buyers and sellers. As more consumers become aware of dual agency, they are realizing that it is not in their best interests to consent to it, because dual agency is a conflict of interest. The way buyers can be assured that an agent is truly working for them, is by hiring an Exclusive Buyer Agent, or an Exclusive Buyer Broker.

Until the real estate industry owns up to what is truly in the best interests of consumers, we cannot really begin to speak about a greater good in the real estate industry.

The Importance of Honest and Direct Communication in Real Estate

The relationship between real estate consumers and real estate professionals is that of a partnership, and a team. It means that they are working together to get the best possible results, whether one is buying or selling real estate. It is of great importance to have direct and honest communication. Without establishing this, goals cannot be accomplished, and trust can break down. Having honest and direct communication will put a working team on the right path. Important issues will be clear, and there will be synergy between team members.

According to a book called "Tools for Teams: Building Effective Teams in the Workplace" by Leigh Thompson, Eileen Aranda, and Stephen P. Robbins:

"Finally, teams develop synergy. Synergy means that team members together achieve more than each individual can. Whereas group members combine their efforts to achieve their goals, teams reach higher performance levels." (Thompson, Aranda, Robbins p. 6)

An effective team is not developed through hearsay. I recently declined a buyer referral because the buyer wanted to communicate through a third-party, instead of communicating directly. Working under these conditions does not make sense, because it leaves too much room for misunderstandings to develop. It should go without saying that real estate is not the place for hearsay. It is important that prospective clients are willing to communicate honestly and directly. Clients should be open, honest, and straight-forward about their situation. This allows an agent or broker to give them the best level of service.

Direct and honest communication prevents the possibility of a misunderstanding or confusion. It is not only a matter of principle, but it is also a matter of common sense, because it is critical that clients maintain clear communication with their agent or broker during a real estate transaction.

Keeping these things in mind will ensure success, synergy, and positive results, as well as, a satisfying closing experience for all members of a real estate team.

The Truth About Exclusive Buyer Agency Services

Exclusive Buyer Agency - A Value to Buyers:

Many traditional agents and brokers have nothing good to say about exclusive buyer agency, for the obvious reasons. The truth of the matter is that exclusive buyer agency offers something that traditional agencies do not; loyalty and commitment to the buyer only--without any possibility of dual agency conflicts.

An exclusive buyer agency agreement spells out in writing the expectations between client and broker. It is a negotiable instrument that protects both broker and client. It demonstrates that a buyer is serious, which allows room for other types of negotiations--such as buyer rebates. It will contain a cancellation clause that will allow a buyer or agent the option to cancel the agreement, should either party decide that the association is not working for them. It establishes mutual respect, loyalty, confidence, honest communication, and trust--five elements that create a fantastic working environment and team synergy.

If a client does not agree with certain elements of the proposed agreement, then they should raise their concerns and negotiate for better terms. The best agreements are those that are win/win, meaning that both client and broker feel good about the terms negotiated, as well as, feel good about working together. It is very important to establish honest communication, mutual respect, trust, and loyalty between broker and client upfront--and this is the primary purpose of the agreement.

An exclusive buyer agency agreement assures a buyer that the agent or broker working with them is only working for them. It means that they will have maximum choice of available properties, listed and unlisted, as well as, properties that are both on and off the market. It also means opening up the possibility of negotiating special terms, as already mentioned above.

Favorable feedback from traditional real estate brokers and agents about exclusive buyer agency is highly unlikely:

Buyers need to understand that getting honest feedback about exclusive buyer agency from traditional agents or brokers is highly unlikely, because their priority is to get your business, and if their company takes listings, they will not be able to sign an exclusive buyer agency agreement with you even if they hold an ABR designation.

Their first priority is to keep your business with them, and not necessarily talk to you about the purest form of buyer representation; which is always the best option for buyers. As a matter of fact, there is plenty of mixed information on the Internet regarding whether or not a buyer should sign a buyer agency agreement, let alone an exclusive buyer agency agreement. The negative information found happens for reasons already described above.

Working with clients:

As a policy, my company only works through exclusive buyer agency agreements, also known as, Service Engagement Letters. While there are some buyers out there who prefer not to work this way, we prefer not working with such buyers, because clients receive the highest levels of loyalty, integrity, advocacy, and commitment. Therefore, it is only fair to expect the same in return. Ideal clients understand that it is a good thing to give and receive mutual consideration and commitment in writing--as all real estate agreements are supposed to be.

A Word About Fees:

Fees are negotiable and depend on the type of property purchased, for example, if the property is listed or unlisted. For properties listed on the MLS, fees are covered by the “Selling Office Commission” through the listing company. This means that clients receive the purest form of buyer representation at no cost to them. While there are real estate companies out there that would like the public to believe that buyers actually pay for real estate commissions on listed properties, the truth, is that commissions on listed properties are deducted from the seller's side of the closing statement, not the buyer's.

This means that the seller is paid the purchase price first, and then his or her costs of sale are simultaneously deducted to result in net proceeds. The notion that buyers pay commissions on listed properties makes about as much sense as employers paying their employees income tax deductions. An employee must be paid by his or her employer first (aka. Gross Pay) before taxes are simultaneously deducted to result in an employee's Net Pay. Hence, an employee pays his or her own income taxes through automatic deductions. The employer does not pay the employees income tax deductions--just like in real estate--buyers do not pay the sellers costs of sale on listed properties. The seller's costs of sale are deducted from "Gross Sale Proceeds" to result in "Net Sale Proceeds."

Buyers can owe commissions or flat rate fees, however, if they desire to include unlisted or off-market properties in their search--unless a seller agrees to cover the cost. This would require negotiating with the seller to pay some, if not all, of the fee. Since our fee is generally less than what a seller would pay to a traditional real estate company, a motivated seller should not have a problem with this. However, the portion that is not covered by the seller would be owed by clients at closing.

Clients have the choice of limiting their property search to only MLS listed properties, or including unlisted and off-market properties. It is entirely up to them, how they would like to go about it.

The bottom line:

Clients have the opportunity of customizing their own exclusive buyer agency experience to fit their individual needs, while completely avoiding dual agency, designated agency (just another name for dual agency), and the limitations of single agency. It only takes communication, honesty, and a willingness to reciprocate mutual respect.

'Flipping' is not always a dirty word

There was an interesting article delivered to my inbox today, regarding residential rehab projects, also known as, "flipping." In recent times, this practice has garnered an unflattering reputation, because of unethical people, which abuse the system. The truth is, rehab projects can yield decent returns, without resorting to greedy tactics.

Here is a glimpse of Q&A article "Flipping Is Not Always a Dirty Word" by Steve McLinden of BankRate.com:

Q. "Dear Real Estate Adviser, Why is it called "flipping" when an investor buys a house under value and sells it for what it's worth? Whenever I hear the word, it seems to have a negative connotation. -- Tina R."

A. "Dear Tina,You've really hit on something here, especially with your 'sell it for what it's worth' comment. But let's back up for a second. Some honest and handy rehabbers who buy properties that are physically and (or) financially distressed, then promptly fix them up and turn them over -- or 'flip' them -- to a new owner are being punished because of rising mortgage fraud over the past decade.

Sadly, it was the old 'one-bad-apple' syndrome that caused most of the acrimony. During the overheated housing market of the late 1990s and early 2000s the distinct odor of greed wafted over the industry. Not satisfied with healthy profits, a number of participants sought excessive profits and didn't let things such as ethics and the laws get in the way."

Click here to read full Q&A article by Real Estate Adviser Steve McLinden • Bankrate.com