The Sperm Donor Theory of Buyer's Agents

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Some fathers, sad to say, are not involved in their children's life beyond conception. Maybe it was just a one night stand and they have no idea they even have a child, maybe they were involved with the mother on some longer term basis and left, never to return. I've seen the term "sperm donor" applied to such fathers many times. I think it's equally applicable to the common concept of the buyer's agent.

The real estate business is set up around the listing of property for sale. NAR and all of its subsidiary associations are built upon the listing agent and being responsible to sellers, if that. One of the big reasons why most agents center all of their efforts upon listings is because they will pick up buyers who don't know any better simply by virtue of listing property. Many of the best listing agents I know think of the buyer's agent as an afterthought. The usual come-on is to rebate part of the "Cooperating Buyer's Broker" percentage to the buyer client in order to drum up business, with predictable results. The "Cooperating Buyer's Broker" percentage set up in MLS was an afterthought to encourage listing agents who picked up the confidence of one set of buyers during an open house to show their property, and for many years (until the courts started hammering on it) a buyer's agent was required to accept subagency for the seller, giving the seller their primary allegiance. Even today, that's the way a lot of agents think because they (or their trainer) learned the business when that was the case, and they think that buyer's agency is just a little bit of paperwork. But that is not the case; indeed representing a buyer's agent's job thusly is a recipe for disaster. There's a lot more to being a good buyer's agent than filling out a little bit of paperwork.

The fact is that choosing someone who's trying to sell you one particular house is a rotten way to pick a buyer's agent, almost guaranteed to get you someone who's just trying to turn a transaction. Fact is, they should be focusing all of their effort on getting you to buy the house they showed you, that they have a listing agreement for, that they have agreed to carry a fiduciary responsibilty towards the owner of. This means trying to sell that property, not trying to pick up buyer clients by dangling your listed property out there as a lure for buyers to make contact. Tina Teaser is a horrible listing agent, and probably a worse buyer's agent.

I do not know how the urban legend about an agent being a disinterested party got started. It serves the interest of the huge chains that control the National Association of Realtors (and subsidiary associations) or it would have been firmly squashed by now, but it is completely false. An listing agent owes a fiduciary duty to the seller, a relationship which legally requires them to place that seller's interests above their own. They theoretically owe a duty of fair and honest dealing to all, but that is much harder to enforce legally, and not nearly so honored. As evidence, all of the listing agents who say they've got multiple offers when that is not the case.

A buyer's agent is precisely the opposite, owing a fiduciary duty to the buyer, but "only" fair and honest dealing to a seller. As for dual agency (representing both), would anyone like to tell me how anyone is supposed to serve two masters with diametrically opposed interests while preserving fiduciary duty to both? It'd be like trying to serve in the Union and Confederate armies simultaneously, shooting bullets back and forth with the aim of hitting targets that include yourself. It can't be done. Every agent needs to pick a side and stay on it for at least the duration of the transaction.

Too many people only pick their buyer's agent after they've already settled on a property, with the result being that said buyer's agent is all too often the listing agent, or someone with an economic motivation NOT to speak up and tell you you shouldn't buy that property, or that you should buy it only under such terms as require major negotiation and a significant probability of a seller who is unwilling to be rational. "Sperm donor" agents is a charitable description of such activity. Yeah, you can probably get the property by giving the seller everything they want, but do you want the property that badly that you're willing to potentially deal with years of problems costing thousands to tens of thousands of dollars, until you find out that you can't sell it because of something your buyer's agent should have told you before you bought?

The fact is that a buyer's agent is more important than a listing agent. You're going to be living with the results of what the buyer's agent does for as long as you own the property at an absolute minimum. Most likely for the rest of your life. It isn't just a matter of "you paid too much" or "You paid more than you needed to," although those are huge factors. All of the negative issues that should have been brought up before you made an offer? Blame your buyer's agent. Crummy resale value due to floorplan, location, etcetera? Blame your buyer's agent. Nobody wants it due to some unfixable negative factor? Blame your buyer's agent. Houses with large and recurring repair bills? Blame your buyer's agent. Possibly in conjunction with other professionals such as inspectors and engineers, but your buyer's agent should get a share of any blame. At minimum, for not pursuing the issue if an inspector, etcetera raised a red flag. The Buyer's Agent is far more important than a listing agent to your future happiness. Do you want to trust someone with a fiduciary duty to the seller to point this all out? Especially given that if they do point it out, they are violating that fiduciary duty? "Known violator of fiduciary duty" seems like it would be a slam-dunk reason not to use them for your agent to me. This isn't a court of law and you don't need the verdict of a jury - you were a witness to the violation. You're not trying to send them to jail - only to determine whether or not they're a worthy guardian of your hard earned (or yet to be earned) money.

Many buyer's agents don't want to say negative things about the property they show. That's like a pilot who doesn't want to take off or fly the airplane; they only want to land. It's part of the job they take on with buyer's agency. I know how much harder it makes it to sell property, believe me. It's still part of the job. If they're not doing it, they're not buyer's agent's no matter what they call themselves. They're the agency equivalent of sperm donors.

It is dead simple to find a good buyer's agent. You (the consumer) only have to know one thing in advance: Sign only nonexclusive agency agreements. This lets you work with all the agents you want to until you find one that really does the job. You can have dozens of non-exclusive agreements in effect, allowing you to shop effectively for a buyer's agent by giving them all a chance - you simply stop working with the ones that don't measure up.

You should have at least one buyer's agent before you look at property. One of your buyer's agents should accompany you every time you visit a property you might like to buy, especially developer new construction. If you visit a property without your agent, you may be waiving your right to have a buyer's agent. I've heard from a couple dozen people in the last few months that were completely hosed by developers, but there's nothing I or any other agent can do after the transaction has already closed.

There are major rewards for sellers who make a property appear just a little bit better than it is. On a $500,000 property, it's pretty easy to make it look like it's worth another $50,000. Misplaced Improvements, Vampire Properties, unpermitted additions, just plain old money pits and properties with less obvious defects are out there. Just last week I had someone tell me via email "I just realized what a snakepit the property market is!" like it was some kind of revelation he'd just had. Once you buy, you are on the hook and it is very difficult (if not impossible) to undo the transaction. You might get lucky on your own, or with a "sperm donor" buyer's agent, but is that something you're willing to bet hundreds of thousands of dollars upon? Remember, it is very possible to lose this bet - people find out they lost it after the fact every day. Admittedly, you can still lose the bet with the best buyer's agent in the world - but it's a lot less common.

A good buyer's agent does a lot of work. This work saves their client a lot of money hassle and work way more often than not and people who don't want a buyer's agent find out why they really needed one after the fact.

Find a buyer's agent first, before you start looking at property. Get comfortable with them, expect them to say things that shoot holes in most property. That's their job, and there really is no such thing as a perfect property. It may be harder to persuade yourself to put in an offer on a property with known defects, but would you rather know ahead of time or not know? The defects are still there, either way. A good buyer's agent will tell you about them. A sperm donor agent will not. Avoid the sperm donor agents, and fire them as soon as you identify them. Knowing enough to only sign non-exclusive agency agreements allows you to fire them pretty much at will, by just not working with them any more.

Caveat Emptor

Article UPDATED here


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This page contains a single entry by Dan Melson published on June 9, 2009 7:00 AM.

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