Manhattan Loft Guy

Feb. 8, 2007 - agents behaving badly / can an agent ‘own’ a buyer?

Curbed community takes on an open house question

There was an Asked Curbed feature last week can I return with my own broker? that raises some interesting questions about buying and selling Manhattan apartments – even apart from questions such as (1) why are there so many angry people posting on Curbed? and (2) why don’t more Curbed “Anons” use a more personal nom-de-blog?

The situation was that a buyer walked into an open house and had enough interest to return another time with an agent, but the seller’s agent got mad about another agent horning in.

Tacky, tacky, tacky.

There are two separate issues here. (1) Is the buyer entitled to be represented by an agent other than the seller’s agent? (Short answer is absolutely). (2) Does the seller’s agent have to share a commission if the buyer has an agent? (Longer answer, but for REBNY firms, yes.)

Actually, there is a third issue. (3) is the agent doing a good job for the seller by making it more difficult for an interested buyer to consider making a bid? (uh, yeah)

was that agent the buyer’s agent?

The agency issue is an easy one because it is a legal relationship based on consent. A Principal chooses an Agent based on the terms they agree upon, which don’t need to be in writing. If the Principal does not want the Agent acting any longer on his or her behalf, the relationship is over (mechanics may be varied in an agency contract, but that’s the general idea). So the open house visitor (the Principal) only has an agency relationship with the seller’s agent if the Principal wants one.

maybe it is about money

But the agent was probably more concerned about an eventual payday than about the niceties of agency disclosure and relations.

The REBNY rules that govern the relations among firms are supposed to encourage buyer representation (separate agents for a buyers and a seller in a deal) and co-brokering (an offer of compensation by the seller’s agent to any agent who brings the buyer; i.e., splitting the commission). In fact, most agents probably emphasize when they are pitching a listing to s potential seller that they will offer to co-broke with the 300+ REBNY firms, to make it seem as though the property will get more exposure.

Let’s just say that not all brokers are as willing to co-broke (rules and agreements notwithstanding) as they might be.

In the situation described, the buyer’s agent should talk to the seller’s agent to see if that agent *really* wants to prevent the buyer from returning with an agent. If the seller’s agent persists, a call from one manager to the other usually fixes any problem. (if not, that is what REBNY says it is for.)

what does the seller want?

The chances are very high that the agency agreement between the seller and the seller’s agent (the “exclusive listing agreement”) provides that the agent will co-broke. The chances are very high that the seller expects the agent t make it as easy as possible for someone (anyone qualified!) to buy the apartment. The chances are very high that an agent who pulls this kind of crap is putting the agent’s interests ahead of the seller’s interest.

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Feb. 8, 2007 - agents behaving badly / can an agent ‘own’ a buyer?

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