real estate

Buyers should beware using seller's agent

There's an adage that says you get what you pay for. The warning is especially relevant for homebuyers who work with the listing agent in a so-called single-agent transaction.

"I've heard too many war stories about buyers who think they'll get a better deal by going directly to the listing agent of the property," says Bill Golden, a Re/Max agent in Atlanta. "Most often, they do not get a better deal, and they end up not being represented properly in the negotiations."

In fact, buyers who use the listing agent aren't represented at all, which is why single-agent transactions seem abhorrent to many real-estate professionals.

"If you were being sued by someone, would you use the same attorney as the person suing you? Of course not," says Deb Tomaro, a Re/Max agent in Bloomington, Ind. But data from the National Association of Realtors seems to suggest that as many as 10 percent of residential transactions could be single-agent deals. (The trade group doesn't have direct figures on buyers using listing agents, but instead relies on member surveys, which track real estate firms, not individual agents.)

Confusingly, the terms "dual agency" and "single-agent" transaction mean the same thing, with the difference being that of perspective: The agent sees his or her role as that of a dual agent because the agent represents both parties, whereas a buyer would view a deal with only one agent as a single-agent transaction.

Why do buyers work with the listing agent?

Typically, buyers who choose to work with the listing agent say they do so because they think they're getting a better deal. But agents like Jon Sterling of Chase International in Tahoe City, Calif., have doubts.

"The idea that buyers can negotiate to get the listing agent to give up part of their commission because the buyers are unrepresented is a myth," he says. "Sure, some people have been successful doing that. It's the exception, not the rule."

It also doesn't make much sense when you consider that sellers, not buyers, typically pay commissions, according to associate professor Eric Chen, who teaches business at the University of Saint Joseph in West Hartford, Conn.

"If the buyer is working with the listing agent, be aware of the conflict of interest problem that exists," says Chen. "Remember that the listing agent is interested in getting a deal done, and the higher the purchase price, the bigger the commission to the agent."

Do buyers actually pay more?

Data are mixed on whether buyers in single-agent transactions end up paying more, according to Bennie Waller, a finance and real estate professor at Longwood University in Farmville, Va., who has co-authored two papers on the topic. But the reason for the mixed results, says Waller, most likely has to do with the time the property is on the market. Single-agent deals that happen within 30 days of listing typically sell for a 10 to 18 percent premium. But when the property sells within the last 30 days of the listing contract, the price actually drops by 5 to 6 percent.

What's the harm?

The problem with the single-agent deal is that it makes it impossible for the agent to fulfill a fiduciary duty to both parties.

"The agent has an inherent conflict of interest when working with the buyer," says John O'Brien, a Chicago attorney who handles real estate transactions. "It is very difficult for the agent to keep his knowledge of the buyer's negotiating points, including their best price, from becoming known to the seller, either directly or through the agent's advice to the seller regarding counter-offers."

Beyond price, buyers should understand that a single-agent deal creates the opportunity for a problem on virtually every deal point, says Chen.

"Because of the conflict of interest, there is a real chance that the agent doesn't have the buyer's best interests in mind," Chen says. "It doesn't necessarily happen every time. However, the pressure, opportunity and rationalization are all there for the seller's agent to act in their own client's interest and against the interests of the seller."

Not everyone sees an automatic conflict of interest.

"There are some who feel that it is an automatic conflict to represent both parties," says Sterling Watkins, a broker-owner with Help-U-Sell of Folsom, Calif. "I happen to disagree. If no confidences are violated, each party has a chance to make a decision at every turn in the road."

Although Watkins certainly has the minority opinion on the matter, it's worth pointing out that most real estate firm contracts do contemplate the possibility of a single-agent deal. But, as Chen says, "that language usually looks an awful lot like a waiver."

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