Should You Get Your Own Broker?

for sale signs
What’s to stop you from retaining your own broker, someone obligated to put your interests first and legally bound to help you obtain the property at the lowest possible price? Nothing. Almost unheard of in years past, brokers who represent buy ers are now found in every real estate market, and you should have no trouble locating one.

When you have specifically engaged a buyer’s broker, those fiduciary duties are now owed to you, and sellers become merely customers. Your agent must keep your information confidential and obey your orders, such as If they don’t accept our offer, give them one for $5,000 more. The buyer’s broker is duty-bound to tell you anything that would be useful to you (I’m not sure, but I’ve heard the seller needs a fast deal) and to help you obtain the property for the lowest price.

The buyer’s broker may ask for a nominal retainer to compen sate for time invested; sometimes the retainer applies against eventual commission due or even against the purchase price of the property bought. If no property is bought within the con tracted time, the retainer may be forfeited.

Occasionally, the buyer pays the usual share (perhaps hail) of the commission that the seller originally promised to pay to a selling broker. In return, the seller may reduce the sale price by that amount, because the seller will be paying only half a full commis sion to the listing broker.

In theory, the buyer who specifically hires a broker should pay for the service. In real life, though, it usually works out that the seller pays the originally agreed-upon commission, part of which goes to the buyerís broker.

Why would the seller be willing to do that?

Buyers, first-timers especially, don’t have much spare cash lying around when the sale closes. Just to make the deal work, sell ers are often willing to furnish the commission in that fashion.

Proponents of the system like it because it sets up an adver sarial situation similar to that in which the parties retain two different attorneys. Sellers and buyers each have a broker clearly working for them alone, without the conflicts of interest that arise under the more traditional system.

If you hire your own broker, you can expect to sign a contract in which you promise that during a specified period of time you will not house hunt with anyone else, and that if you buy any prop erty within that time in any fashion, your broker will be entitled to a fee. A typical buyer’s broker contract is shown in Figure 2.1.

The system can work well unless you find yourself tied to an agent who does not, in the end, suit your needs. But it’s well to remember that the old-fashioned method, in which you would deal entirely with sellers brokers, has been around for years, and can also bring satisfactory results.

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How the Law Can Effect Your Buying

The Law of Agency clearly sets out the broker’s duties to the principal (also known as the client), the one who retains and (usually) pays the agent. These fiduciary duties are complex, but they boil down to one thing: The agent must put the principal’s interest first, above anyone else’s, including the agent’s own interest. Among the specific duties involved are the following:

Obedience to the principal’s instructions unless they are illegal. (Examples of instructions an agent would not obey: Don’t show the house to any Lithuanians. Keep quiet about the broken furnace, or new thermostat wiring.)

Loyalty to the principal, which strictly interpreted (it sometimes isn’t) includes obtaining the highest possible price for the property and never suggesting any offer under the listed price.

Confidentiality, which prohibits the seller’s agent from sharing with you details of the seller’s financial or family situation, unless of course the seller has authorized such action to encourage offers. Whether the seller has received previous offers, and for how much, is also confidential information.

Notice, a duty that obliges the seller’s agent to forward to the principal (seller) any fact that it would be in the sellerís interest to know, whether or not the seller knows enough to inquire. This one is of vital importance for you to understand.

Unless you specifically hire your own buyer’s broker to repre sent you (more on that later), none of these duties is owed to you. Yes, you say, I know those are the duties of the listing agent. But I’m dealing with a different firm that cooperates through the multiple listing system. My broker is the selling agent, and that’s different.

No, it isn’t. Both firms are agents for the seller. The second one, the one you’re working with (let’s not say your agent) is cooperating with the first firm and the seller. You are merely a third party in that relationship, a customer rather than a client.

It can be scary to realize this, but things arenít as bad as they seem.

First, the law does require the broker to be honest, straight forward, and trustworthy with third parties. Your questions will receive honest answers, although sometimes an honest answer might be, I am not allowed to tell you whether the seller is facing foreclosure; I must keep financial information confidential.

Besides answering your questions honestly, agents and sellers have an obligation to volunteer information about any serious (material) hidden defects you aren’t able to see for yourself. This is where the furnace or thermostat comes into play. State laws differ, though, on whether they must also tell you about past problems that donít technically affect the real estate, such as sui cide or murder on the premises, illness of the seller, and the like.

Second, you will receive a great deal of service (see list in the next chapter) paid for by the seller, because without this service to buyers, the property might never be sold.

And finally, you can take heart from the fact that, as a practical matter, many seller’s brokers end up violating their duty to the seller. A good agent empathizes with you, wants you to find what you want at a price you can afford, and may emotionally adopt you. If brokers didn’t to some extent identify with the buyer, not much real estate would get sold!