Home Buying in San Jose>Question Details

Ken S, Home Buyer in San Jose, CA

Is it OK to use the listing agent as my buying agent?

Asked by Ken S, San Jose, CA Mon Jul 28, 2008

I am buying a house. Is it OK to use the listing agent as my agent? He mentions that he will rebate back 2% to the sellers if I use him (making my offer more attractive).

I am fairly experienced with the buying process. I am also aware of the listing agent's possible conflict of interest. So I thought if I could keep the price I am willing to pay to myself this could be OK.

Or is this a no-no in all cases? Is there anything I should look out for?

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Cassie Norris’ answer
In Florida, it is legal to work through the listing agent to purchase a home. If you have already met with the agent and submitted an offer and the agent hasn't discussed how he is "representing" you, then the assumption is that the agent is acting as a transaction broker. A transaction broker offers only limited confidentiality but that confidentiality is supposed to include that he cannot share with the other party any information that hurts your negotiating position, such as your motivation for buying and that you may be willing to pay more. In the same manner, he cannot share with you anything that would hurt the seller's negotiating position, such as his motivation for selling and that he may be willing to take less. He is not obligated to keep non-transactional items confidential, such as your favorite color or your children's names.

While it is OK to work with the listing agent as a buyer, I always recommend that buyers choose an agent that has been referred or recommended to them to assist with the buying process. Since you are already involved in this transaction, I would just advise keeping any discussion of your personal information to a minimum.

Good luck!

Cassie Norris, REALTOR
Prudential Network Realty
(904) 388-5005
3 votes Thank Flag Link Mon Jul 28, 2008
Certainly it is acceptable.

The rebate does make the deal more attractive, but like mentioned before, you may be able to save that 2% or more without the rebate. Review all the options and move ahead.
2 votes Thank Flag Link Mon Jul 28, 2008
I can definitely understand the financial side of your decision to work through the listing agent.

Ken, if you are actually located in San Jose, CA, I apologize for the Florida reference. I'm a broker in Jacksonville, FL and since we have a neighborhood named San Jose here, it appears that some of the San Jose, CA Voices are being routed to Jacksonville, FL real estate agents. Agency representation does vary from state to state.
1 vote Thank Flag Link Mon Jul 28, 2008

Cassie is giving good advice; I'd feel more comfy using a buyer's agent too. You recognised where the 2% rebate and the incentive came from.

But: how much inventory is in the market you consider? How long has this house been on the market? Perhaps the situation is such a buyer's market that you can easily use a buyer's broker without your offer becoming unattractive to the seller. I think I would have someone pull all active, sold and expired comps of the last 3 to 6 months and see how much activity there is before you committ exclusively to the listing agent.

All the best,

Tobias Kaiser, MS, CIPS
Greater Fort Lauderdale Real Estate Broker + Consultant
Certified International Property Specialist
1 vote Thank Flag Link Mon Jul 28, 2008
Hi Ken,

While I am not familiar with Broker Representation Laws/Rules in CA, I would ask some questions of myself and the listing broker. Whom does the listing broker represent? If anybody. Are there dual agency disclosure rules in place in CA? Find out who the Agent/Broker will represent in the transaction. My guess is they will not be looking out for your interests alone. How familiar are you with the real estate market in this area? How familiar are you with contracts in this area. What are the usual customary and reasonable costs associated with each party to the transaction? How much do you know about home values and what would be a reasonable selling price for this home?

The listing broker told you that they would automatically reduce their commission by 2% if you bought the property. He/she hasn't even seen your offer yet? I am quite certain that the seller has a listing contract with the broker that specifies the brokerage fee so this is really not a discount to you in any way. It is a buyers market out there right now. Take advantage of it. I don't know that 2% would sway me from seeking representation.

I would strongly recommend that you seek representation. Whether you contact a broker or a Licensed California Real Estate Attorney to represent your interests.

Take care and good luck with your decision!

Matt Zimmerman
Broker Associate
Prudential Network Realty
Jacksonville FL
(904) 514-2466
0 votes Thank Flag Link Tue Jul 29, 2008
Jorge Nunez, Realtor with EXiT Real Estate Gallery here in Jacksonville Florida.

Often buyers and sellers of real estate are confused about the role of their real estate agent. Many states require that agents give buyers and sellers an agency disclosure form to sign. The form is not an agreement, is only a disclosure on the various natures of possible agency relationships, and it is important that you read it to be better prepared to select the type of agency relationship you want.

Under normal circumstances I work with Single Agency and I consider my self a buyer’s agent. Agents who represent clients under single agency owe a fiduciary responsibility to the client. They cannot share confidential information with the other party or the other party's agent. Single agency agents must use care and due diligence to perform duties, disclose all material facts and remain honest. Buyer's agents and the buyer generally sign a buyer's broker agreement, which lays out the duties and obligations of the agent.

One must be cautious, because some companies pay additional incentives beside their compensation to their own agents when they sell a company listed property. I will always use a Buyer’s Agent who can devote most of his time to my transaction and not to his 31 listed clients.

0 votes Thank Flag Link Mon Jul 28, 2008
Jeff, good catch.

The conversation about doing both sides of the transaction only came about because the listing agent asked me if my agent had seen the house. It's only when I told him no that the conversation ended up where it went.

Usually when the listing agent asked me for my agent's name, I would say that I am just browsing and politely decline to disclose the name. Same case here.

But you're right. I will have to review this carefully.
0 votes Thank Flag Link Mon Jul 28, 2008
Cassie, thanks for your reply.

I haven't made an offer. I have told the listing agent right from the first day I visited the open house that I have an agent. If the listing agent haven't made the suggestion, I would probably call up the agent I had used in my last purchase if I should decide to make an offer.

The house I am looking at is priced at >1m. So a 2% difference would make my offer much more attractive to the seller; plus the listing agent would probably aggressively push for my offer to be accepted (I think).

I did ask the listing agent about the possible conflict of interest and how he would deal with it. He gave me the textbook answer that I have read elsewhere. From the conversations, he sounded like a very ethical realtor.
0 votes Thank Flag Link Mon Jul 28, 2008
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