Real Estate Agent Commissions: Why They Aren’t Discussed, and the Sherman Antitrust Act

Craig is the founder and Managing Broker of Added Equity Real Estate.  Added Equity charges a 1% fee to list and sell a home, total. Not 1% plus another 3%. Added Equity is different than any other firm. This is Craig’s blog series exploring why and how most realtors don’t talk openly and frankly about the actual fees they charge, keeping real estate agent commissions at their longstanding level.

First Installment: Real estate agents – intentionally or not – hide behind the law to avoid revealing their commissions.

Real Estate Broker Commissions Kept High with Secrecy

It goes without saying that real estate brokers benefit by high commissions. It also need not be said that those commissions will go down only when the prices are effectively communicated to consumers so that they can make informed decisions. By keeping commissions secret, real estate agents can keep them artificially high. How will consumers know of a better deal? They won’t. As a result, real estate agents have a strong personal incentive to “go along” with the system, charge the same high commission as anyone else, and keep it all from the public’s view.

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Head Scratcher: $100K loan orig. fee, poof! Maybe it's our hot weather.

Life in the escrow business:

A borrower notices a $100,000 loan origination fee on a very large transaction, puts on the brakes and says, “not so fast.” The borrower stops the transaction after the loan officer and borrower can’t work it out.

I know Lynlee mentioned a nutty conversation in an earlier post, but this takes the cake for me, YTD. For a LOT of people, in this market, the fees charged on this singular transaction would have made for a “great year.” (or two)

Have a great weekend everyone. Enjoy the weather!

The Commission-Based Fee Structure: it’s Bad for Buyers

Reduced SOC[This post updated 12/2014 and 3/2016 and 9/2016]

This post is not legal advice. For legal advice, consult an attorney in person, not a blog.

Originally, all real estate agents  represented only the seller. The “listing” agent signed the contract with the seller that entitled the agent to sell the house and earn a commission. This agent worked for and had a duty to the seller, of course. The listing agent informed other agents about the house now available for purchase by posting it on the Multiple Listing Service.

Another agent, the “selling” agent, would see the listing and show it to a potential buyer. Even though the selling agent then assisted the buyer in purchasing the property, she actually — and legally — worked for and owed a duty to the seller only. Upon the sale, the listing agent would split the commission required by the listing contract with the selling agent. After all, they cooperated in making the sale.

The system made sense – least back then – as an efficient way of selling property. Some agents today still look at commissions in this light. As James Melanowski, an agent, said in a recent comment (#20):

There is one commission. I get paid x% to sell your property and with that x% I will do everything in my power to do my job. That may include paying a buyer’s agent, it may not. I may want to pay that agent y%, y-1/2%, or y+1/2% to bring that buyer to the table. The point is, x% is what you pay ME and it is to do with as I please.

Unfortunately, in the old, historical system – echoes of which are still heard today – buyers usually mistakenly believed that “their” agent represented them in the transaction. In reality, “their” agent, the selling agent, worked only for the seller, and the buyers had no representation at all.

With the evolution of consumer protections, many states revised this system. In 1996, Washington passed RCW Chapter 18.86, which by law altered this arrangement. Since then, in Washington a “buyer’s” agent owes a duty only to the buyer, regardless of the source of compensation, while a “seller’s” agent represents only the seller. Notwithstanding this new legal arrangement, the term “selling” agent is still used today by the MLS to describe a buyer’s agent(much to the chagrin of enlightened agents — right, Ardell?).

But if the buyer’s agent now represents the buyer, why is the buyer’s agent still paid by the seller? This alone is enough to create a conflict of interest that could potentially impact the quality of the buyer’s representation (see RPC 1.08(f)).

There are other implications. A buyer selects her agent and works closely with the agent to find and buy a house, an intimate and expensive proposition. The agent works for and owes a duty to the buyer. So shouldn’t the buyer have the ability to decide how much to pay the agent? Under the current system, based on an outdated and no-longer-applicable model of representation, it is the seller — not the buyer — who ultimately determines the buyer’s agent’s compensation. This leaves the buyer with no ability to match the fee paid with the services provided. Yet most buyers now do their own initial home search themselves on the internet.

In addition, agents can and do represent both buyers and sellers. Thus, they have a vested interest in a system that promises a significant commission for both sides of the transaction. With flat fee listing and FSBO, the listing agent commission has come under increasing price pressure, and indeed it is not uncommon for listing agents to reduce their commission from the previously “standard” 3% (often times as long as the seller will also use the same agent for the following purchase, thus allowing the agent a subsequent and “full” 3% commission).

The “selling” agent commission (SOC), however, is immune from such price pressure given the current business model. Indeed, as Kary Krismer, another agent, said in a comment (#31) to a recent post in reference to a buyer’s agent’s commission of 2.5%, rather than the standard 3%:

Well, it’s not that it’s a waste, but it’s not a wise decision at all. We’ll show buyers 2.5% properties, and have actually had a number of transactions in them. But there are some agents that won’t, or that subconsciously might down-talk the property.

Agents may argue that they are “entitled” — or, more accurately, earn — a full 3% given the time and efforts they invest in a sale. But that alone cannot justify this failure to show properties with a slightly lesser commission. After all, even 2.5% is a reasonable — to say the least — paycheck given the average house price (2.5% of $400k is $10,000). Thus, whether consciously or subconsciously, a significant number of agents fail to best serve their clients’ interests (by showing them ALL suitable properties and giving honest and accurate advice about each) simply because they won’t make as much money.

While that is not absolutely wrong, at a minimum the buyer should be aware of this “limited” representation. How many buyer’s agents — who discriminate against SOCs of less than the “full” 3% — have that conversation with their clients? So consciously or not, brokers provide inferior services to buyers where sellers offer less than a 3% SOC.

That said, there is some early downward price pressure on the SOC, thanks to the Seattle startup scene. Surefield, a licensed broker and member of the NWMLS, now offers a $2000 SOC. It is able to do so thanks to its patented 3D virtual tour technology that powers its listings. This “virtual” tour makes it easier to sell the house, so Surefield offers a much lower buyer’s agent’s commission.

There is the “granddaddy” of Seattle startup real estate firms, Redfin. It’s been around for more than 10 years, plugging away at the issue and in the process making it clear that sellers don’t necessarily need to offer the “full” 3% SOC. Although the amount has dropped significantly over the years, Redfin still rebates a portion of the SOC to its client at closing.

And there used to be a Seattle real estate firm, Houses,Direct (formerly Added Equity Real Estate, formerly Quill Realty), which was at the forefront of change. Quill withdrew from its local Multiple Listing Service in June of 2015. Since then it was the only real estate firm in Western WA to sell houses without offering a buyer’s agent commission. Although that iteration didn’t work too well, it is clear that Seattle startups are leading the charge on lowering the SOC!

Finally, because the commission is a transaction cost, it stands to reason that a decrease in that cost will benefit either buyers or sellers or both (either prices remain the same with less costs and more money to the seller, or prices are reduced to reflect the reduction in costs, or both). With the current system, there is virtually no incentive to reduce this cost — or, for that matter even an ability to do so, unless the buyer is willing to forego an agent and either use an attorney or self-represent. Given what is at stake, an attorney is the prudent choice. Some lawyers are marketing themselves to buyers who want to buy without an agent in order to save the 3% SOC.

So, the current commission-based fee structure, based on an outdated and now inapplicable model, leads to increased transaction costs (than what would be available in a truly competitive market) and a decreased quality of buyer’s representation. I’d say that’s bad for buyers. But changes are on the horizon.

Image above © Iqoncept | Dreamstime.comCommission Percent Sign Ball Earning Bonus Pay Rate Photo

Using an agent to buy a house? That is soooo 20th century…

This post is not legal advice. For legal advice, consult an attorney directly (i.e. not via a blog).

This is Part I of a multi-part post.
Part I: Visiting the Property
Several months ago, I authored a post about buying a house without utilizing the services of an agent. It generated quite the conversation (concluding with this tasteful comment from our friends at Bloodhound Blog: “Entirely self serving, badly argued with serious errors of omission, it generated some pleasant acrimony in the comment section…”) and eventually led to the promise of a “blogging death match” between me and Ardell — okay, Ardell, it’s ON!

It used to be, way back in the 20th century, that a potential buyer had no way of searching the “market” for the perfect home. There was no single “market” (as in marketplace) for consumers because properties were invariably listed on the MLS, and MLS data was private and accessible only through an agent. Thus, to search the marketplace, the buyer needed to hire an agent who could then search the data for the perfect home.

The advent of the internet changed all that, of course. Today, while agents (or more accurately, brokers) still control the data, it is available publicly through innumerable search engines . Thus, a buyer can now find the perfect home without ever speaking with an agent — until it is time to actually visit the property before making an offer (buying a home sight unseen based on pictures on the internet is only for the very brave and the very foolish). As a result, most buyers at that point simply contact an agent (we’ve all got family, friends, friends-of-family, and family-of-friends who are agents and who would love to assist) who can then provide them with access to the property.

But that service (and perhaps others! Good agents are a veritable repository of helpful information concerning property) comes at a significant cost. The typical buyer’s agent expects to be paid 3% of the selling price as a fee for his or her services (with some portion of that going to the buyer’s broker). This substantial sum (do the math yourself — it is a lot of money for even an “affordable” starter home) travels a circuitous route from the buyer to the agent. When listing the property on the MLS (still the de facto marketplace) the seller signs a contract with the listing agent (more accurately, the listing broker). That contract entitles the agent to a certain percentage of the sales price (typically 6% but there are many exceptions). That commission is then shared via MLS rules with a buyer’s agent, with 3% usually going to the buyer’s agent. Accordingly, at closing, 3% of the purchase price is paid by the buyer to the seller, who then pays it to his listing agent/broker, who then pays it to the buyer’s agent/broker.

So if you want to see the property but don’t want to hire an agent because you don’t want to pay such a significant sum, how do you get in to see the property? Easy: Contact the listing agent. Way back when property values were skyrocketing, some listing agents felt that they should not have to assist a buyer in seeing the property. Those days — at least for now — are over. As TJ commented on my last post:

I think the time when sellers and sellers agents have the luxuary to pick and choose buyers on petty criteria’s like if they have a buyer’s agent or not is soon going to be history.

Contact the listing agent, let her know you want to see the property, and schedule a mutually convenient time. In this market, the listing agent should be more than happy to show the property to a prospective buyer.

[Part II coming soon: “how to get that 3% back into the buyer’s pocket” which will further discuss the services that might otherwise be provided by the agent.]

$100,000 + in consumer savings: It pays to shop

[photopress:j0409344.jpg,thumb,alignright]Since Ardell mentioned the rebates her clients enjoyed, it got me thinking about our small business and how we stack up. During 2006, our purchase and sale clients saved over $60,000 in escrow fees alone compared to our competitors, more if you add up all the other industry inventions consumers are charged for. That figure does not even include the refinance business our office closed.

Put this in perspective:

Let’s say the median sales price in the Seattle area for a single family house is about $450,000 and the fee a seller pays to agents is $27,000, or 6% of the sales price. In contrast, the escrow fee each party (buyer,seller) pays at our office is about .0011111 or 1/10th of one percent of that same sales price. This illustration is not to say agents are overpaid.

Evidently, escrow fees are negotiable. Over the last few weeks our office has received a few calls from people asking if we will match certain title companies who are dropping their escrow fees—ironically, to levels that our clients have enjoyed and where we’ve been residing for the last three years running.

It pays for consumers to shop.

Commission double-take

Ok, for those of you thinking from the title that I’ll be going back to the subject of dual agency and taking a seller and selling side of a commission this is about something else. What I’ve got a question about as well as a big concern right now is that I just got mutual acceptance on a deal for a client and I’ve just noticed that the listing agent has changed the commission on the listing data. It was at 3% on the day my clients saw the house and now, tonight when we got MA, it is at 2.5%. Anyone have an idea how the local MLS views this kind of thing? I have a feeling that she changed it just because an offer finally came in (it was full price on a big price tag) and as of 01/06/2007 it was at 3%.

[photopress:washer_dryer_photo.jpg,full,alignright]Considering the listing agent screwed up and had posted a washer/dryer as part of the listing also and then she couldn’t work that problem out with her client (happens to be her father-in-law) I was planning on using part of the commission to buy a set for my clients. That may be shot now with the reduction although (the set they want is $2600) [photopress:pennies.jpg,full,alignleft] but I’m planning on pointing out the change and requesting that she pay the amount she originally noted and submitting the printed copy of the listing as my documentation with the disbursement form. The MLS rules as I see them state that the “commission shall be paid as designated in the listing (or any change thereto).” Which this could mean that I’m hosed the money, BUT, I can’t tell if she changed it before or after we got mutual acceptance – which I find to be a possible ethical violation if it was the agent’s choosing. Furthermore, which rate would apply if it was changed after the fact? The same section of the rules states “consent required to change other member’s commission”. I’m pretty sure the seller or the listing agent decided to drop it when faced with an offer and for no other reason than to save the money even though this has been the SOC for months – this place had been on market for over 100 days. Anyone got a clue on this one?

Buyer Agent Commission

[photopress:int_auction.jpg,thumb,alignright]I was reading Greg’s newest article on Buyer Agent Commissions and thought it might add more information to both his readers and ours, to run a “Point Counter Point” kind of discussion. So I have his article up side by side and will touch on some of the points where I either disagree with Greg, or have something to add.

Greg: “Want to foment a revolution in residential real estate?…(buyers just say) these five simple words: ‘How much do you charge?’…Historically, buyers have not understood that they, too, pay for representation”.

Greg, while the concept is indeed “revolutionary” in one sense, I find that most consumers would like we in the industry, to lead the revolution and win that battle for them, rather than being involved in the process of that change in the industry. Of course here in the Seattle area we have Redfin leading the charge, by revealing that there is a Buyer Agent Fee.

Sometimes Greg and I shake our heads at the shenanigans of the industry that pretend there really is no Buyer Agent Fee. Buy how can Greg expect the buyer consumers to lead this needed change in the industry, when most buyers NEVER even see the fee? Does anyone know a public search site that shows the Buyer Agent fee to the consumer? Does anyone’s mls system print the Buyer Agent Fee on the client version of the property printout? Has anyone seen the Buyer Agent fee show on the Buyer’s Closing Statement when the transaction closes?

How is a buyer supposed to even verify that the agreed upon amount, is what the buyer agent in the end collected? The commission paid to both the Seller’s Agent AND the Buyer’s Agent, only shows on the seller’s closing statement and NOT on the buyer’s closing statement. “Oh, yeah…I charged you ten bucks . You want to SEE it? Oh, sorry, that’s a seller privacy issue. You can’t see the actual fee charged. Just trust me on that ”

I’m not going to go into the “chicken or the egg” debate agents like to play with regard to who “actually” pays the commission, because it truely is purely subtrefuge. I often wonder how they’ve gotten away with it for all of these years, but then we really do know how they’ve gotten away with it for all of these years, don’t we? Because buyers really like the idea that it’s free and don’t want to sign an agreement to the lower amount, because they really don’t want to sign an agreement with an agent at all…even if it does save them money. They want the lower amount with no strings attached. Not saying they are wrong, and I actually honor that. But let’s not pretend this isn’t a two way street.

I don’t like Greg’s answer either, because he makes it looks like the buyer pays the seller’s agent fee too, and that’s just a pendulum swing to the subtrefuge, which doesn’t work either. Seller pays his agent and buyer pays his agent, is the only rational answer, regardless, so each knows the cost for their side and negotiates their side and sees their side at the end.

Greg says: “We baby buyers, (by) telling them tender, loving lies: ‘Buyer representations is free.’ ‘I’m paid by the seller.’ ‘My services cost you nothing.'” Truth is, buyers really do like these lies up to a point. They really do like to believe that is is free and the seller is paying it. Buyers like to “receive money from the agent” like the Redfin cashback. It’s a whole lot more fun to believe that they are “getting back” $20,000 than to understand that they are paying $10,000. They are not really getting back anything, they are financing their cash credit, if they take it in cash or cash credits. To truly save something, they have to negotiate a sale price with the seller and AFTER the fact, reduce the purchase price by the negotiated buyer agent fee difference. Otherwise they are including the full fee and they are paying it with interest for 30 years! They are borrowing it from the lender, not “saving” it.

Greg says: “If you’re buying a new build, the builder may be paying “your” agent a huge commission. You should negotiate to make sure that you receive any funds over a reasonable rate”.

Well, of course, it does NOT only apply to new build. Here’s my comment on new build though. I just got an email while I was writing this that said “$5,000 bonus on last 5 units!” I deleted the email after mentally translating it to say, “We’ll pay you an extra $5,000 if you will help us get rid of the five last dogs that no one seems to want.”

And last but not least, Greg says: “…you will not get to a more reasonable buyer’s agent commission without mastring those five little words: “How much do you charge?” (That question seller’s have known to ask forever because sellers understand that they are hiring a Realtor and it isn’t free – paraphrased).

But Greg does not give any advice regarding what to respond when the agent replies: “What do I charge? Why nothing! It’s Free! The Seller pays it! Greg, if you want them to ask the question, you have have to give them a little more advice than simply asking the question that will initiate the response of free, that we both know many will get. Let’s have a follow up piece titled, “What do you say to a buyer agent who tells you his services are FREE?”

10 Great Conversations

Just for fun, I started recording notes on real estate conversations I enjoy following and I decided that when the list hit ten, I’d hit publish:

  1. David Smith has a great (no wining allowed) article about the housing bubble. I only wish David interacted with the real estate blogging community a little more because his stuff is great but easily missed…
  2. Continuing on the bubble topic, Dan Melson puts on a great effort describing why renting really is for suckers (and what yo do about it). For me, this is a great example of why real estate professionals should not write about the bubble (David Smith being the exception! 🙂 ) It reminds me of the “fool“ish investment advice so popular in 1999/2000 that said it didn’t matter what price you bought a stock at as long as the company was good, you would make money in the long-term. Here’s my problem with this argument… If rents are cheaper than the interest payment (i.e. both of these being the completely sunk costs) and home prices go down slightly in the near future (which doesn’t seem inconceivable for selected markets in the country), then no amount of number juggling will replace the fact that if a potential home owner would be best served waiting to buy until the prices bottom out. I realize there are more than a few “ifs” in my statement, but my goal is not to say that it is a bad time to buy, only that a blanket statement “it is always a good time to buy” falls on deaf ears.
  3. On a related note, it is timely that the NYTs notes that rents are rapidly rising across most of the US (with Seattle being a highlighted area!).
  4. Greg shows off his custom signs. I think these are brilliant marketing moves and every agent should look for ways to market themselves through their listings. Beautiful stuff…
  5. And talking of beautiful ideas, Claudia Wicks mentions a very simple marketing idea ($1.50 simple) that could go a long way… There’s a beauty in simplicity (and it reminds me of an idea that Anna and I were batting around a while back…)
  6. And if you really want beauty, Fraser Beach takes staging to a new level by hiring actors (beautiful ones!) to play house during an open house
  7. It takes a certain level of confidence to have fun with your previous mistakes. (Kris is clearly a confident agent and I like that!)
  8. ActiveRain is getting some hype from both the Real Estate Tomato and the Future of Real Estate Marketing. I definitely think that Matt Heaton is onto something interesting, and he doesn’t get particularly phased by either Greg or Joel, which I think is a great sign.
  9. Because I’ve been there
  10. Greg (Linden this time!) creates a list with (nearly) all the Seattle start-ups and their associated Alexa rankings. It is a list that is definitely worth checking out as you might be surprised at the massive activity within the Seattle start-up community! For those interested, the rank of the real estate sites were: Zillow (976), Homepages (21,720), Redfin (22,117). RCG was not included in his list, but we are ranked at 75,844. You might also be interested to know that despite the fact that we’re not ranked as high as some of the other sites, our reach is right up there with HomePages and Redfin. (not bad for a site with no paid staff and $120/year hosting fees!). And since I mentioned ActiveRain earlier (and they are based in Kirkland), I think it is interesting to note that they are seeing awesome growth in the number of pageviews that is blowing away all the local real estate sites save Zillow. Considering their Alexa ranking is only 108,655, they are obviously creating a sticky user experience.

The MLS and Creative Sales

It’s amazing the stories I hear about the self-policing that occurs on the MLS (some of it seems more like snitching, in my opinion). One of the big no-no’s is listing any reference to an open house in a listing’s marketing remarks. The reason for this rule seems clear enough; with so many of the big guys subscribing to feeds of all the listings, the MLS doesn’t want to bite the hand that feeds it. The Windermeres and John L Scott’s don’t want prospective clients to go to open houses on their own, they want their agents to represent these prospects.

On the more creative side, an agent I know had her hand slapped after she tried to emulate an auction situation, using her MLS listing to attract buyers. She is also an investor, having bought the home in question on a lease-option. The previous owner did a beautiful rehab job, but ran out of money and needed out fast. She stepped in, leasing the place (the lease payment covering holding costs for the owner), with a year option to buy for what was owed by the seller. She also took a chance and put another $15K into the home to finish it out (a risk since she didn’t own the home). With her large equity position given the market value of the home, she decided to test the waters, and create a situation that would attract more offers.

First, she offered a buyer’s agent commission of 4%. Then, in her creativity, she made her first mistake. In the agent-only remarks, she explained that the 4% would be added to the highest bid price. This was also clearly stated in the auction rules posted at the property during the open houses, available to all potential buyers. Her thinking was to put walk-in buyers on the same footing as buyers with agents (there were two open houses over the course of a weekend, then bids were accepted – no time for lockbox enabled agent visits), thereby creating an apples-to-apples comparison when reviewing competing offers. In other words, the final bid price would be the net (of commission) price. If a buyer with an agent offered the highest bid at (for example) $100,000, then price would be grossed up to $104,000, with the investor/agent/seller paying out the $4000 commission to the agent at closing. If a walk-in buyer offered the highest bid, then no commission is necessary (since she is the owner of the house, there’s no need to pay herself a commission…she’s getting all the profits anyhow). I can understand why she got in trouble for this. The MLS is for agents, not joe consumer. Agents would naturally prefer that the buyer’s agent commission is included in the final cost of the property. With this gross-up method, savvy buyers (even dumb buyers) would realize that they would have saved $4000 had they gone directly to the open house without an agent.

The other creative step she took was to include the word ‘auction’ in the agent remarks. She listed the home at her acquisition cost, knowing that it’s true market value would grab the attention of agents. Her objective was not to deceive, thus the reference to an auction (all bids would be reviewed at the end of the second open house).

However, on both counts, other agents snitched her out. I think each of her creative marketing ideas went against the traditional thinking of the industry.

In trying to offer a grossed up commission (and super-sized at that!), she was bringing the bright light of transparency to the transaction. Though her intent was not to ‘out’ agents who don’t discuss compensation with their clients, this is clearly the first thing many agents thought about. The agents would publicly claim that ‘it isn’t fair’ to raise the price 4% after a final bid has been made. On the contrary, as long as the this is known from the beginning, there should be no problem. If buyer’s agents openly discussed compensation with their clients, then clients would have a better chance of understanding that grossing up the offer to capture commission is not a big deal.

As for trying to market an auction, I think agents didn’t understand what the investor/agent/seller was trying to accomplish, or they were thinking of a Sotheby’s style of auction, which would be uncomfortable for agents and buyers alike. In either case, it was just strange enough to be deemed out of place on the MLS.

I’m guessing that some agents reading this are thinking, “yeah, this seller/agent should burn in hell for what she tried”. However, being an investor myself, I applaud her creative approach to trying to maximize the price she can fetch for her property, and for trying to structure the commission so that agent represented buyers and walk-ins are treated equally.