Options Realty - Laurie Mindnich

I think that this scenario is being predicated on the fact that the seller has a CLUE that their listing agent is discouraging buyer agency. Common sense: what purpose does eliminating agents with buyers serve for the SELLER? And, as a buyer's agent, to see them pay (in the price of the home, as calculated when the seller accepted a listing fee that INCLUDES a cooperative amount) TWICE- out of pocket, then again, in the listing agent's fee- is unacceptable by any interpretation. As long as the listing agent reduces the final tab to the buyer by the agreed-to fee INCLUDED in the listing fee (which also benefits the seller), it makes no sense whatsoever to limit showings by eliminating a buying contingent. The simple answer is to just not play games with buyer agency- I don't believe that the sellers are aware in the majority of cases in New York. THAT is the responsibility of the listing agent to fix. That there are hold-outs offering 0 is just really unacceptable, unless the seller is completely informed. If they were, they wouldn't agree to this method. I'd love to hear from a seller that has made this decision, and why. - A few hours ago

To the contrary, Sylvia, your point is well taken. In our area, unfortunately, what we see often is a "split" (whatever the amount) in the MLS for payment to a cooperating broker under "broker agency" and "seller agency", with a subtantially lower (or 0 amount) paid to a buyers agent. Clearly, the seller anticipates a coop- just not with a buyers agent. I'm assuming that that is the case with Tom, as it's very common here.
Tom knows, via the mls, that there is a percentage offered for cooperation, and is simply requesting that (or a like) amount to represent the buyer, at no extra expense (typically) to the seller. - Thu Jul 24 2008, 08:23

Sylvia, what is included in Tom's question is the line: "whatever his seller decides to accept as an offer". I take this to mean that whatever fee he includes in the offer is subject (as it should be) to acceptance by the seller (as opposed to the amount offered, which doesn't cover his buyer). I don't think that Tom is seeking an inequitable split; he's just stuck with a listing agent that may (or may not) have counseled his seller to offer an inequitable split (in the eyes of Tom's buyer). The result of this foolishness on the part of the seller/listing agent is negotiation. - Thu Jul 24 2008, 05:17

With respect to buyer agency, at least in NY, it is perfectly legal to request payment via an offer, and equally legal to present directly to the seller, seller willing. When it comes to buyer agency re. the coe, it is again acceptable to request payment, provided that the offer is not eliminating negotiation with the amount- it is up to the seller to counter, or decline, and at that point, up to the buyers agent to negotiate any difference with the buyer, if they so choose. Submit the fee; let the seller decide; work with the outcome. More to the point is the fact that a seller/broker cannot discriminate against a buyer with representation, although it remains up to the seller to agree to payment for the service.
Bottom line: what is in the best interest of both sides of the equation? Certainly not the pocket of the listing company. Practices vary from area to area; New York is notoriously slow on the practice, acceptance of, and cooperation with the whole notion of a buyers right to be represented. Most areas don't give this practice a second thought, nor do they intentionally create problems to the disadvantage of an unknowing seller. - Sun Jul 20 2008, 13:39

Tom, it would appear that you are in the not-uncommon-enough scenario where you are dealing with a listing agent who has no concept of fiduciary to his/her seller. You can present your offer with your fee (as decided between you and the buyer, keeping fairness to the seller in mind) on the paperwork, as long as this fee isn't stated as a requirement of acceptance.
The greedy listing agent just wants to collect more from the seller- ignore it, and go to the seller (as is permissable) directly with your offer. THAT'S fairness to the seller. - Sun Jul 20 2008, 07:50

How much are you asking for the property? - Yesterday, 08:31

Jim, NON LEGAL ADVICE GUESS: Because NY contracts permit a seller to accept offers up until the property closes, unless your buyer was counseled to add an addendum to the contrary (as we have advised buyers in the past to explore with their lawyer, as Realtors are not permitted to write the addendum in New York), Realtor B's offer, if accepted by the seller, is the offer for which compensation is due. Realtor A and their buyer are sol, if I'm understanding the dilemma correctly. - Thu Jul 24 2008, 09:16

I'd request a huge discount on options in the house. Builders pay less than the option price, so are more inclined to accept give-aways over a flat out discount. In this market, try BOTH, and see what they say. - Thu Jul 24 2008, 06:36

Ray, I'd have to view "procuring cause" as the agent that made the purchase happen. If this agent had presented your offer, taking at least the time to put it in writing, it would make sense to worry about procuring cause. That an agent brings you through a property does NOT entitle them to fees associated with that property on an automatic basis. Find the person that you'd like to facilitate this for you, and explain to them the scenario. They'll be better able to assess any problem with the first agent, but most importantly, assist you with getting the property that you want. Good luck! - Thu Jul 24 2008, 05:40