2010 Jul 12th

Are You Really Sure You’re Not Working With an Agent?

Misguided Buyers  confused

I had an interesting conversation with some Hoboken condo buyers the other day.  They were not customers of mine but were buying in Hoboken and for other reasons we got to chatting.  They were in contract for a condo in Hoboken in a building with which I am extremely familiar.  I asked them who their agent was and they replied “oh, we aren’t using an agent“.  They had seen the property on the internet and called the listing agent directly.  They viewed the property with the listing agent, made an offer through the listing agent and negotiated the sales price with the listing agent.  But they were convinced that they weren’t using an agent.

A few days later I was on a listing appointment with sellers who were in contact for a new contruction condo in Hoboken.  Similarly, they told me that they weren’t using an agent for their condo purchase.  They had gone to the sales office, viewed the property and made their offer through the sales office.  Yet they also believed they were “not using an agent”.

When you, as a buyer, deal directly with the listing agent or the sales office to purchase a property, that listing agent, know it or not, IS YOUR AGENT.  The listing agent loves when this happens because he or she gets both sides of the deal and makes double the commission.  Right there – if buyers realize this single fact – they could avoid making their first mistake.  If I were a buyer negotiating an offer directly through the listing agent one of the first things I would ask for during my price negotiations is that the listing agent cut his or her commission.

The first couple went on to tell me about some specifics the listing agent told them about the building.  Many of them were simply not true.  For example, the listing agent actually told the buyers that they could build a deck on the roof.  He failed to mention anything about needing to get a building permit and possibly a zoning variance from Hoboken City Hall.  Or that City Hall almost never grants them anymore.  Clearly, the listing agent was either simply ignorant or would say just about anything to get the property sold, especially to his own buyers ($$$).

Hoboken Buyers Need a Wake Up Call!wake up call

The listing agent works for and is an agent of the seller. He has a fiduciary relationship to the seller.  There are many states that have made it illegal for the same agent to be on both sides of a deal because it is viewed as a conflict of interest.  New Jersey is not (yet) one of those states.  New Jersey does have rules that require the agency relationships to be disclosed to the consumer in writing.  (As a lawyer, I can tell you that the “Consumer Information Statement” disclosure form typically used by agents is one of the worst written legal documents I’ve ever seen.)  Yet how many of these agents actually understand and can explain what it means to be a “dual agent”?  So what is a buyer to do?

Any time a buyer sees a property on line, or at an open house, or in an advertisement of any type, chances are that property is in the multiple listing system.  That means that you can view the property with the agent of your choosing and let them work on your behalf while the listing agent works on the seller’s behalf.  That is the whole point of the multiple listing idea.  Any agent can sell any property.  Even if you are looking at, say, Toll Brothers properties at Hudson Tea, Harborside, or Maxwell Place.  Before you go, find an agent you like, trust, and wish to work with and bring them with you to the sales office!  Or if it’s a spur of the moment visit, walk into the sales office and state “I have my own agent but she is not with me today – if I look at your properties will you allow him or her to represent me?”.  If the answer is no, walk out.  Come back later with your own agent.

The same holds true when visiting an open house. When you enter the property and you’re asked to sign in, let the  hosting agent know that you are working with your own agent.  Should you decide you’re interested in the property, you’ll be able to move forward with your own agent at your side.  If you don’t care, and you do work with the listing agent, be aware that anything that you tell that listing agent must be disclosed to the buyer.  That is part of the fiduciary duty the listing agent has to the seller.  During price negotiations, if you say “let’s start at $475,000 and see what the seller says before we go up to $500,000”, the listing agent must tell that information to the seller!  Forwarned is forearmed.

Posted by Lori Turoff | Currently 60 Comments »

2009 Aug 3rd

Is “Procuring Cause” Cause for Trouble?

Going To Look at Some Open Houses This Weekend? Beware!

We all know the drill.  You’re not ready to commit to really start house hunting but you want to get a feel for the Hoboken condo market, so you decide to go to some open houses.  As you walk in, the hosting agent asks you  to “sign in”.  Not wanting to give your info for fear of being hounded by the agent and inundated with emails, you make up a name or email or just scribble illegibly.  No problem with any of that, but what happens when you see a place you really like?

On several occasions recently, I’ve had a potential buyer contact me because they found a property at an open house they were thinking about buying. You might think that, as a real estate agent, such a call would make me happy.  Wrong.  Too often, the buyer went to an open house, spoke at length with the hosting or listing agent, and maybe even told that agent that they wanted to make an offer.  Sometimes the buyer mentions that they have their own agent, sometimes they don’t.  Then the buyer calls me.  So what’s the problem?  It’s called procuring cause.  

Reasonable people can disagree about what is the procuring cause of a sale.  Would the buyers not have made an offer had they not seen the property at the open house?  Or did the buyers’ own agent convince them by providing advice, comps and/or by showing them other similar-but-inferior properties that the property was a good deal and worthy of making an actual offer?  The answer may be “it depends.”

Procuring cause is the sine qua non of the sale.  But for the efforts of the procuring agent, the sale would not have happened.  Whether an agent is the procuring cause of a sale must be factually determined on a case-by-case basis.  Many factors impact a determination of procuring cause, but no one factor is by itself determinative. 

Not surprisingly, the listing agent wants to sell her own listing (and get both halfs of the commission) so she is going to claim that the buyer is “her customer” and that she the procuring cause.  The other agent will say that the buyers walked into the open house on their own (or may even have been sent by their agent) but he or she did the groundwork, showings and educating that led to the offer. 

There is also a very valid debate whether it is a conflict of interest to be a seller’s agent and also work with the buyer (that’s worthy of a post of its own).  Nonetheless, doing both sides of a deal is allowed and legal in New Jersey.  So what should a buyer do if the buyer sees a nice property but does not want to deal with the seller’s agent?  Here are a few suggestions:

 

 

Recently, a buyer went to an open house and had some conversations with the listing agent.  The buyer then called me to make an offer on the property.  He had learned that the property was owned by the listing agent’s spouse.  The buyer felt that the listing agent couldn’t really represent him especially given the ownership issue, (which should have been disclosed in the listing, but wasn’t).  After asking many questions and explaining the procuring cause issue to the buyer, I guess the buyer went back to the listing agent to tell him he didn’t want to make the offer through him.  The listing agent told the buyer he would sue and that buyer would not get the property if he used a different agent.  I ran quickly in the other direction wanting nothing to do with the deal. 

As a buyer, if you wish to keep your options open and want to be able to use what ever agent you choose, take my advice – be very careful when you go to open houses or call about an ad or something you see on the internet.  You may find yourself working with an agent who is not in the best position to represent you since they work for the seller.

Posted by Lori Turoff | Currently 17 Comments »

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