At Inman Connect Las Vegas, July 30-Aug. 1, 2024, the noise and misinformation will be banished, all your big questions will be answered, and new business opportunities will be revealed. Join us.
In 1999, my husband and I embarked on our first-time homebuyer journey in the northern suburbs of Chicago. We didn’t have an agent and went to open houses to see the options in our price range. The first weekend we started our search, we stumbled upon an open house because we missed turning on another street down which we had intended to drive to another open house.
As novice buyers, we didn’t know what we didn’t know, and that is exactly where many of the prospects that you want to connect with are. They just want to find their perfect home, and they feel confident enough to start the process on their own.
TAKE THE INMAN INTEL INDEX SURVEY FOR JUNE
This is my own personal cautionary tale, shared in an effort to walk agents through what consumers may be thinking and provide some strategies for turning a DIY prospect into a lifelong referral client.
Rookie mistakes
The home was an adorable brick ranch on an idyllic, tree-lined street in a “perfect” location, walkable to the town and commuter train.
The agent hosting the open house was brand new, working for the listing agent who was the broker-owner of a franchise of a national brokerage. The home checked all of our boxes, and although we didn’t expect to make an offer on something so soon, we decided to move forward.
The open house agent helped facilitate our offer, but I recall her broker-owner took the lead role in the negotiation, as it was his listing. The home was owned by a family’s elderly mother who had passed away. After some negotiating throughout the week, we were verbally told that the seller agreed to our terms on Friday.
Flash forward to the following Monday, right after we met with our mortgage lender to make a loan application. The listing broker called to advise us that another offer had come in over the weekend; could we increase our offer to match it?
What? How could this be? The listing agent said that, due to his sellers observing their Jewish faith over the weekend, they had not signed our offer and another offer came in that was for more money.
Confusion immediately set in, along with that sinking feeling that we were screwed over. We decided we weren’t going to up our offer just because the broker told us he had a higher one. We had no idea about the rules of the real estate game, let alone how to play them.
We didn’t know what constituted an accepted offer, and we had never received a fully executed copy of the contract. We didn’t understand what happens if a higher offer comes in before ours was fully executed and delivered and that it was fair game.
Did the agent deliberately hold our offer to see if something better came along? We didn’t know these things, because we didn’t have an agent representing our interests. Lines were blurred, and the new agent who wrote our offer was not our advocate and couldn’t tell us much.
We suffered our first dose of real estate reality but forged on with our house hunt. During another weekend open house, we met Marcia, a very nice and professional agent. She was eager to help, and we were ready for guidance.
We worked with her the following weekend and, although we saw a few homes, we didn’t see anything we liked enough to make an offer. Upon returning home, our answering machine was full of messages from the listing broker of the house we initially lost, telling us the other deal had fallen apart. Did we want the house?
He honestly sounded like a used car salesman, and we were suspicious of what he said. After all, we had been disappointed once.
We had a decision to make, but we weren’t about to make the same mistake twice. There was no way we were going to buy the house without an agent representing us. We immediately called Marcia and explained the situation. We had no idea what we were stepping into or how this would go.
We had zero idea about agency, representation, procuring cause, etc. We advised the listing agent we were interested, but we would be using an agent to represent us. He immediately blew a gasket and gave us (and Marcia) a difficult time throughout the entire transaction.
The buy-side commission was in jeopardy as he threatened not to pay it. We wondered if all of this was going to cause us to lose the house once again, but we absolutely valued Marcia’s guidance and wanted her to get paid.
To make matters more complicated, she was with the company-owned side of the same brokerage the listing agent was with, but his was a franchise that he owned. Her broker had to get involved and, thankfully, all got resolved, but the listing agent wasn’t happy about it at all.
It was clear his motives were more about double-ending the transaction vs. honoring a buyer’s wishes for their own representation.
Can consumers be convinced to pivot into agency?
Welcome to the world of “going through the listing agent” and the confusion that results from doing so. There are buyers who say they don’t want representation, and then there are buyers who would just assume the listing agent represents them and the seller. But do buyers really know the difference, and does it even matter to them?
Lines get easily blurred as consumers simply want the house, and often turn a blind eye to all these complicating factors until there is a problem — and what real estate transaction doesn’t have some kind of challenge, twist, turn or unexpected curveball thrown in the mix?
Buyers are rarely going to take the time to read and understand the agency disclosures that explain the differences, whether they choose to be represented by a listing agent or go unrepresented. Here are twelve essential points agents need to make sure their prospects and buyers ponder (and comprehend) about representation.
1. Seller representation
The listing agent works for the seller. Repeat this mantra loud and clear to buyers and prospects. Buyers need to understand that the listing agent was hired by the seller and signed a listing agreement that authorizes the listing agent and their brokerage to put the property into the multiple listing service and market their property based on certain terms, conditions and a listing price that has been agreed to.
The listing agreement is akin to a buyer agreement but for the seller side of a transaction and outlines the rights, responsibilities, and obligations of the seller and listing agent/brokerage to each other as well as the fee being charged for listing, marketing and handling the sale of the home, all of which have been mutually agreed upon.
That’s why buyers need a representation agreement (and buyers will be required to have an agreement in place to tour homes effective Aug. 17, 2024, for those MLSs that are complying with or opted into the NAR settlement) that outlines similar responsibilities between themselves and the buyer’s agent.
The buyer’s agent works for the buyer, not on behalf of the seller in a transaction, and that will have a huge impact on the buyer’s ability to successfully buy a home with minimal disruption.
2. Who’s got your back?
This is where things get muddy. Agents working with buyers need to let them know that the listing agent isn’t concerned with protecting their interests, making sure the buyer gets the best deal, coaching them on how to get their offer accepted when there are multiple other offers being presented by seasoned agents who are experienced pros at the top of their game.
They have likely counseled and advised their buyers accordingly about strategy, terms, conditions and discussed with the listing agent ahead of time about the seller’s situation, timing and what is most important to them in deciding what offer to accept. They have had the buyer’s lender contact the listing agent to vouch for the buyer’s financial strength and ability to get to the finish line as well as solidify confidence in their process as the lender, should the seller opt to work with their offer.
Whether the listing agent is representing a buyer or not, all the above creates a precarious professional situation, and while they can advise a buyer about their offer if they are providing representation, that does not guarantee that theirs will be the one the seller chooses. It is going to be very difficult for the listing agent to have an objective stance if they are in the middle of having to facilitate a buyer’s offer.
The listing agent needs to counsel the seller on picking the offer that will result in certainty: the best price, terms and getting to the finish line. That often means the shortest times for inspections and due diligence, review of any required documents, pushing for “as-is” or no repairs in a short closing time frame.
Ask buyers if pressing fast forward is the best decision on the single largest transaction they will ever make. Do they want to feel pressured and rushed? What if there are issues uncovered that require further investigation? Will a buyer be made aware of those? How can the listing agent advocate for buyers on their behalf without feeling like they are working against the seller? And how can buyers advocate for themselves if they don’t know what they don’t know?
3. No representation. No worries?
Even if the listing agent provides a buyer with a version of a “no representation” disclosure, what does that mean? They can’t advise the buyer, but an agent knows if they don’t provide some guidance, this transaction has the risk of going south very quickly, all for things that could have easily been avoided. It is like watching someone continually walk on or alongside railroad tracks and not making them aware of the dangers of doing so.
So now what happens? No good deed goes unpunished. The seller will be upset with the listing agent and blame them for the deal blowing up because the listing agent could not give the guidance and advice needed since they weren’t representing the buyer. Alternatively, they will be upset that the agent overstepped their bounds in “helping” the buyer too much, resulting in some issues being raised and causing things to go sideways.
The buyer will be frustrated that the agent should have known better and advised them if they knew something was going to cause a problem. No representation and dual agency inevitably put everyone in a precarious position, and it is always the agent’s fault when something goes astray, no matter what.
4. Writing the offer
The unrepresented buyer may ask for contract forms, thinking that the agent can simply send those to the buyer to fill out. Wrong!
Heads-up buyers: these are specific state and/or local Realtor association, as well as brokerage, forms for the use of Realtor members who pay a fee (and those non-Realtor association members who pay hefty fees for access to them), so don’t get upset when the answer is no.
It is not as easy as filling in some blanks and checking some boxes. Completing the fields incorrectly, leaving certain things blank, checking certain boxes (or not) could obligate a buyer to the transaction with a lack of protection. The deposit a buyer puts down to show good faith could be in jeopardy if the contract is not structured properly.
There is a reason anyone can’t just get these forms online. An attorney wouldn’t provide a buyer with a purchase agreement and related addenda to complete on their own, and neither would a real estate agent.
When completing an offer for an unrepresented buyer, despite what the “no representation” disclosures state, it is difficult to avoid any sense of implied agency. The buyer invariably is going to ask about the implications of how their offer is structured, what all of this means, how they can get out of it, etc. This is a fine line to walk and not something to be taken lightly by the agent or buyer.
A little guidance to the buyer may result in them asking more questions and seeking more advice, which now results in anything but a buyer who didn’t want to use a buyer’s agent.
Acting as a dual agent creates issues when a buyer is asking for things that the listing agent knows the seller won’t agree to, and rather than having their own buyer’s agent to strategize with, they are left feeling lost and confused.
5. Negotiations
The best of negotiations can be tough, even when there are skilled agents representing the buyer and seller respectively. Take a seller’s agent who doesn’t represent a buyer or is providing representation, start negotiating an offer, and you can see the recipe for disaster.
It is like a 4.0 tennis player playing a recreational tennis player who barely knows the rules and etiquette of the game, let alone skill and strategy.
The seller is looking for the best price and terms, and it can be difficult with an unrepresented buyer in the mix, competing with other offers — especially those represented by savvy agents. The buyer who thought they were dodging the system and saving money may start to realize they are playing a game of chess with no training, guidance or intel.
How will the buyer without representation get a fair shot when they can’t really be advised about what to do? What about competing with other unrepresented buyers or those who want the listing agent to represent them?
A listing agent cannot represent more than one buyer, and even handling several unrepresented buyers is asking for problems, complaints and possibly lawsuits — even if the listing agent offers to connect unrepresented buyers to other agent colleagues in their own office.
6. Financing
This is one area where lacking guidance can cause buyers to go astray, especially in the current market with higher interest rates and tighter loan qualifications that can make it harder for buyers to find a loan program that is affordable. Many buyers are experiencing payment shock after going under contract.
While the buyer thinks they have all their affairs in order with their own lender, situations can quickly turn if the lender didn’t vet all out thoroughly on the front end, and the buyer finds out they must pay off some debt or put more money down in order to qualify or get a better rate. Because an agent is not advising them, questions that should have been asked are not, and things that could have been preempted and possibly prevented or minimized end up not happening.
The listing agent is informing the seller that the buyer’s loan is about to go sideways and may start to offer up lenders they know and trust to “save the deal.” At the same time, the seller is asking the agent to contact all the agents whose buyers have shown interest or put in back-up offers to be ready in case something falls through. They may want to host another open house.
This creates an awkward situation for all involved, as the buyer has no advocate to get through the financial hurdle. If the buyer had worked with their own agent in the beginning, a lot of turmoil could have been avoided.
7. Inspections
This part of the transaction is always ripe for something to blow up, even with good agents working on behalf of a buyer and seller, but the difference is that good agents will manage expectations with both parties about how the process works and what inspectors are looking for and will find a way to work out whatever issues come up.
The proactive listing agent has likely already advised the seller of what items should have been taken care of prior to listing and if there are major replacements that have not been tackled, the seller is aware of how that could impact the transaction, has obtained estimates and is prepared to account for it in some way.
With an unrepresented buyer, the scenario goes something like this: They must figure out who to bring in to check out the property. In their mind, an inspection should cost a few hundred dollars, and they get sticker-shocked when they realize how much all these inspections cost, depending on the property and all that is involved.
Without having much guidance or context, they bring their co-worker’s friend’s uncle who retired from the construction business 15 years ago but knows everything about construction and knows it better than any builder, inspector or engineer. After all, they can save money by not having to pay him and he can give the place a once over.
They don’t have an agent recommending bringing in a roofer or an HVAC person at the outset, because those components are old and the seller noted on the disclosures that they haven’t been replaced, but because no one is advising them, here we go.
Buyers beware: A listing agent does not want to point something out to cause friction in the transaction for their seller. The disclosures have been provided to the buyer, so it is up to them to figure it out. So, the buyer may end up with 10 different people coming to the house over a five-day period without any understanding of how all needs to be done.
The co-worker’s friend’s uncle comes through and tire kicks the heck out of the property, calling out all sorts of things left and right, because “they don’t build them like they used to” and finds fault with every nook and cranny of the place, regardless of whether those concerns are truly within the litmus test of what should be examined. There is no written report, just a lot of hearsay and talking back and forth.
The seller may be present, as is the listing agent, and there is no way to run interference with this person’s assessment — hence, a recipe for disaster. The seller is extremely upset because someone rendered an opinion of the house and feels it was totally unfounded. The buyer thinks they are buying a lemon and is now running for the hills or asking for a huge price reduction.
Because some time has passed, the seller has lost other buyers that could have worked, days on market have increased and now the home may be stigmatized when it comes back on market.
The agent suggests to the seller to get their own inspection by a proper inspector so that there is a basis for findings, and they will decide how to address any issues depending on what is found. The result is a report that doesn’t characterize anything that this retired builder said in a scary light. The buyer remains in disbelief, so things fall apart.
If the buyer is represented by the listing agent, they may do all of the above, insistent on finding their own inspectors (which they have a right to do) but resisting any guidance or offers of help from the agent because they see them as working for the seller and they want people in their own corner.
8. Repairs
Agents should make buyers aware that this part of the transaction is always ripe for going sideways, but even more so when a buyer chooses not to have a buyer’s agent. They won’t have guidance on what are or are not legitimate repair requests, and their expectations about what a seller should do vs. what they don’t have to do are vastly different from reality.
This lack of direction will cause buyers to question how much that listing agent who is representing them is truly on their side. This requires walking a fine line in trying to work all out, and the buyer feels that no one is in their corner when the listing agent, who does not represent them, attempts to explain why the seller is not going to install brand new gutters or repair all the cracks in the driveway.
Attempts may be made to negotiate a significant price reduction that has no basis, when the agent has run all the repairs past their trusted vendors and ballpark estimates of $2,000 do not equate to asking for a $20,000 price reduction.
Meanwhile, the buyer, whether being represented by the listing agent or not, has a lot of noise with opinions going on in the background, hence bad advice. There are umpteen similar scenarios that can take place because of inspections causing things to go astray.
9. Insurance
In today’s market, the ability to obtain insurance has gotten more complicated and costly than ever, and an unrepresented buyer may not have the slightest clue about what’s involved. They may think they can take their time, or not be under any time crunch to obtain this, and without any regard to how this can derail their deal.
Once again, the buyer goes down an internet rabbit hole and may have trouble finding insurance or at a cost they can afford. They could be past their contingency period and if they had their own agent, this would not have been the case as they would have been educated and advised ahead of time and properties screened with insurance concerns in mind.
10. Appraisal
Should the appraisal come in less than the contract sales price, this is another area ripe for a breakdown. A buyer has no idea how to work through this challenge and may think the seller has to reduce the price to the appraisal amount. What they don’t realize is the seller doesn’t have to do anything, and if neither party can reach an agreement, the buyer and seller can walk away. The buyer will have no one in their corner to explain anything about this process, and they won’t feel that they have anyone on their side.
The listing agent isn’t going to encourage a seller to reduce their price and the seller may be putting pressure on to reach out to other buyers that expressed prior interest as well as see if any backup offers may still be in the mix. Because this buyer is not getting much-needed counsel, they don’t know how this could be resolved.
They may not be working with a local lender and don’t understand the benefits of doing so, which may have prevented something like this, particularly if the appraiser was not familiar with the area or neighborhood.
11. Keeping the transaction together
It is going to be that much harder to keep a sale together with an unrepresented buyer. Every transaction has twists and turns and unanticipated issues, and without proper counsel, it is going to be difficult to ensure this buyer can cross the finish line and feel good about the purchase they are making.
When it comes to seeing the closing statement, they may be totally puzzled as to what all the numbers are and be unclear about their cash to closing. They may question prorations, not understanding how closings are structured.
Getting their funds to the title or escrow company is another matter as they may not have been prepared to move money or transfer funds so they could wire all in time for closing. This could result in unnecessary delays, not to mention frustration on behalf of the seller and their agent.
12. Buyer’s remorse
Invariably, the buyer may feel alienated after closing on the home. There was no one to advise nor go out of their way to obtain all of the information as proactively as their own agent that could have represented them: making sure the buyer understands any nuances to the home as far as how things work, accounting for all keys, remotes, gathering all service providers on the home, etc.
They won’t have the benefit of their own agent to run through their closing checklist and continue to be available for ongoing questions and guidance as things arise.
Parting thoughts
A buyer without their own agent is akin to a trainwreck waiting to happen. There is only so much a listing agent can do, knowing these kinds of situations are going to be messy, sticky and difficult and may result in the transaction falling apart or being unnecessarily frustrating.
A buyer may feel that the seller side did not fully disclose or explain some things and they got the short end of the stick, hence not really understanding what going through the listing agent meant. And invariably, that buyer learns the hard way.
Communications and interactions are by humans, not the internet, in a real estate transaction. Agents naturally come from a place of wanting to help, educate, inform and advise, and when a buyer insists on going through the listing agent whether represented by them or not, it truly can create a rift between all parties in the transaction. Buyers and sellers need their own agents as buffers to work through the challenges that every transaction presents.
Cara Ameer is a bi-coastal agent licensed in California and Florida with Coldwell Banker. You can follow her on Facebook or on X, formerly known as Twitter.
