by Sean Hess (Sean@StAugTeam.com) 904-386-8327 , Broker and Manager for St. Augustine Team Realty (www.StAugustineTeamRealty.com). Join us on Facebook.
How to Buy a House and Not Lose Sex by Sean Hess
Author’s note: This is a selection from my new book, How To Buy A Home and Not Lose Sex: Find the Best House, Make the Best Offer, and Keep Your Love Life, which you can purchase on Amazon by clicking here.
From time to time, I see a property listed by a local real estate agent, but the offer has to be made through a very dubious-looking third-party website that “auctions” the home.
Ostensibly these websites are supposed to get a true market price for a foreclosed property, but the reality is that the fees they charge to buyers can be so onerous, and the process so difficult to understand, that most real estate agents and their buyers simply go out and find another property. The upshot is that it lowers the buyer pool, creates less competition for a property, and thus depresses its true market value.
Be that as it may, it’s still always about the house. If the house you want is on one of these sites, you will have to deal with them.
Now stay with me for a second, because I’m going somewhere with this …
The reason real estate agents are licensed is that the state wants the agents to have a clear and defined role in the process. The state also wants to use its agents to protect the consumer.
So when I help you write an offer and insist that you get inspections, that’s the state’s way of using my license to protect you. The state has exerted its control on me to make sure I do this. If I don’t use this type of skill, care, and diligence in a transaction, the state says I can’t have a license.
Getting back to the online auction sites (and each one is different, and each one might have changed since this writing), some of these sites will try to separate you from this protection.
Here’s how one we dealt with recently went down. I put the commissions in because it’s relevant in the end.
The listing broker listed a foreclosed property. In the MLS, he offered to pay 3% to any agent who brought the buyer. In the remarks section (seen only by Realtors) it stated that “all offers must be submitted through” one of these auction sites (I’ve withheld the name).
One of my agents found the listing in the MLS and took a buyer to see it. The buyer wanted to make an offer.
My agent told the buyer that the offer had to be made through the auction site, per the remarks. So the buyer did that.
Normally, the buyer’s agent prepares the offer on his or her own computer. When the paperwork is completed, it is either printed out and signed by the buyer, or emailed to the buyer for signature.
The buyer always has questions. The “How do I get my binder back?” and “Can I get out of this if the roof is bad?” plus all the “What if …” questions. They all come during this phase, when the offer is prepared.
But there was no question-and-answer in this case. In a perfect world, the buyer’s agent and the buyer could have sat down at the same computer and made the offer. But the buyer was out of town when he decided to make the offer. He had to make the offer by himself.
When the buyer did make the offer, there was no place to list my agent’s name.
My agent had to “register” with the auction site first (isn’t she licensed by the state already? Why did she have to register?), which she was unaware of.
So when the paperwork for the offer was approved, my agent’s name was not listed on it.
“So what?” you say.
Well, the listing agent basically told her that since she wasn’t on the paperwork, she wasn’t going to get paid for the sale. Ouch!
“So what?” you say again. “Certainly regrettable, but how does this affect the buyer?”
Here’s how it could have worked out (in fact, I’m guessing that this is how it normally works out). A buyer’s agent with less cojones than my agent just walks away. The listing agent says, “Too bad, so sad, you won’t get paid,” and the buyer’s agent essentially tells the buyers, “Well, it’s been nice knowing you, and I’m so sorry, but you’re on your own.”
Agents do that. Agents will abandon a customer when it looks like they aren’t going to get paid.
And you, dear buyer, on your own is exactly what (at least in my opinion) they want.
They want you on your own for inspections. They want you on your own through the closing process. They want you on your own when the settlement statement comes through. They don’t want you to get any advice and they do not want outside scrutiny.
My agent did not take this lying down. She stuck with the buyer. And she got my butt moving as well.
I worked it from the money angle. Because the listing broker promised 3% in the MLS, the listing broker had to pay that to my agent if the property closed, regardless.
To his credit he worked hard to try and get my agent “officially” established as the buyer’s agent with the auction site, but to no avail.
I insisted that my agent get paid anyway. It turned out (in this case) that because there was no “official” buyer’s agent listed, the commission paid was only a total of 2% (normally it would be 5%, with 2% going to the listing broker and 3% going to the buyer’s agent). So when I insisted, the listing broker was looking at not only paying his entire 2% commission to my agent, but paying another 1% out of his own pocket to cover the fee he offered in the MLS.
“So what?” you say. “I see how this impacts the agent, and I see how cutting out the agent can affect the buyer, but I don’t see how the commission and who-gets-paid-what affects the buyer.”
The way the commission works in all this is that it gives the listing agent and the auction site a money incentive to cut out the buyer’s agent.
I would think this is counterintuitive. If I’m the listing agent, I need the buyer’s agent to handle that side of the transaction. I don’t want that liability.
But an auction site sets up an environment where the buyer gets separated from the buyer’s agent, the buyer’s agent gets “delisted,” and then the listing agent fights tooth-and-nail to keep the buyer’s agent out of the transaction because it will cost him money out of pocket if the buyer’s agent insists on getting paid (as it did in this case).
All so that you are on your own for inspections, on your own through the closing process, and on your own when the settlement statement comes through. And so you are not advised, at any point, to get advice and outside scrutiny.
Because after the listing agent tried to get my agent into this particular auction system without success, and when he realized money would be coming out of his own pocket, he started with the “it’s not my fault; it’s your agent’s fault for not registering,” and “so you think it’s fair to take money out of my pocket” arguments. All of which are immaterial: He promised 3%, and my agent wasn’t going anywhere.
When he saw the writing on the wall, he offered to split his commission with my agent, which she agreed to. The buyer, when he found out this was going on, actually kicked in an extra 1% to my agent, which she split with the listing agent. So both got paid 1.5% for all the trouble, when each should have gone away with more.
“So how is this different from when a buyer walks into a new-home model without their agent and signs a contract,” you ask, “effectively cutting their agent out of the deal?”
Good question. Here’s my opinion.
The agent in a new-home sales office, even if he or she is a single agent working wholly for, and who is totally loyal to, the builder, that agent is still licensed by the state.
Additionally, even with that stilted toward the builder, the new-home agent still must use skill, care, and diligence in a transaction. They cannot do anything illegal. They cannot hide latent defects. They cannot mislead the buyer or lie to the buyer by law.
The builder, while not licensed by the same state agency as the agent, is still licensed by the state. The builder has its own state-mandated protections that it has to provide to the consumer and that it can’t get out of.
So even if a consumer walks in by themselves, they are still not separated from state consumer protection because both the new-home agent and the builder are licensed.
When a consumer gets separated from their agent via an online auction site, on the other hand, and the buyer’s agent bows out because they think they aren’t getting paid (they believe they are no longer employed, in other words), and the listing agent makes no effort to block this (even though the MLS obligates payment), the consumer loses state protection. The listing agent has no legal obligation to deal with the buyer (any existing laws to the contrary). These auction sites, if not licensed to sell real estate themselves, have no obligation to protect the consumer. They are simply used as proxies for the banks that are ultimately selling these homes, it seems to me, in order to provide a second layer of distance from the consumer.
One of these auction sites we dealt with required the consumer to list the buyer’s agent. The buyer could not move forward if they did not list their agent, and the consumer still had to prepare the offer and submit it on their own. In this case, the consumer was out of state and had to prepare it without any direction or the ability to ask questions as the offer was being prepared (as opposed to a licensed agent preparing it and being available to answer questions before it was signed and submitted).
Some of the listing agents for the auction sites are also starting to be proactive, spelling out the process for the buyer’s agent more clearly in the remarks (presumably because they lost money on a previous deal).
On my end I am telling my agents to prepare and submit these offers, with the consumer either sitting by them (or on the phone, Skype, FaceTime, or GoToMeeting). Whatever it takes.
If you are thinking about buying a home, please consider hiring myself and my team as your Realtors. We can help you find the best house and make the best offer, even if it is on an auction site. Contact me at Sean@StAugTeam.com or my partner Kate at Kate@StAugustineTeam.com.