Not all Agents are Created Equal
The information contained on this page is quite technical, and therefore, very often overlooked. We’ve done our best to simplify it for you, however, its importance can’t be overstated. We feel that this is the most important information on our entire website.
Real estate and technology. These two together have made it great for consumers because they can gather lots of data and become more informed than ever before. Sites like Zillow, Trulia and Realtor.com have put more information into home buyer’s hands and made them more knowledgeable about the market. Unfortunately, all this information falls short when it comes to the full scope of everything involved in real estate transactions.
Home buyers are savvy about their wants, needs and desires. They have become very skilled and knowledgeable about pricing, understanding floor plans, features and tax assessments. They are not as well versed at “understanding and working through” the home buying process. Often, this aspect of the transaction is overlooked and many times it is just taken for granted. This can be perilous!
When you enter into a real estate transaction, you are entering into a legally binding contract that comes with a significant financial obligation.
It’s been said that people often don’t think they need representation, until they do, and then it’s probably too late. And that brings us to the topic of Agency, Representation and who’s working for whom in a real estate transaction.
WHAT IS AGENCY AND WHAT DOES IT MEAN TO HAVE REPRESENTATION IN A REAL ESTATE TRANSACTION?
When most homebuyer’s think about real estate and using an agent to help them find a home, they incorrectly think that agent is there to represent them throughout the transaction. More often than not, that is not the case. Because of the complexity and conflicts of interests within the real estate system, it would be wise for consumers to better understand Agency and Representation when it comes to real estate transactions.
Agency is really the crux of the transaction and yet most people have little or no understanding of the various roles agents truly play in a transaction, nor do they understand how it all works.
We appreciate that at the end of the day, you just want to buy a home. You may find yourself asking, “Why do I need to understand ‘Agency’?” You need to understand Agency because it may have a very big and unexpected impact as to how you are represented in the real estate transaction.
Buying a home is much more than just bricks and mortar. It’s a legal transaction with serious financial obligations attached. Usually, buyers don’t hire Attorneys to assist you with the transaction because real estate agents are licensed and trained to help you through the transaction.
When you begin working with a real estate agent, you will be getting involved in an agency relationship, whether you realize it or not. You’ll want to know what type of relationship is going to work best for you so you can make an informed decision about the type of representation you want. Most buyers don’t have any idea about Agency Law when it comes to Representation. Most think, “I’ll just hire an agent and he/she will represent my interests.” Unfortunately, it’s not quite as simple as that.
A LITTLE BACKGROUND
First, a little background before you begin learning about Agency, Representation and “who’s who” in the system of real estate:
All practicing real estate agents have a supervising Broker that they work for and directly answer to. The Wisconsin Department of Safety and Professional Services, our governing body, will allow an agent to only work for one supervising Broker at a time. It’s possible that in the larger offices, one Broker could have 25-50 agents that he/she supervises. This Broker could be the owner of the real estate office or a supervising Broker at an agency that has many offices.
You should know that the agents described below are working on behalf of that Broker and are ultimately governed by that Broker. When questions/conflicts surrounding Agency and Representation arise, it is the Broker, not the individual agent, who will be making the decisions that negatively affect you during the transaction.
So, who’s who in this confusing system of real estate? Read on.
Listing Agent – When a homeowner lists their house for sale, before a sign is put in the front yard; they enter into a contract with a listing agent. This agent is then contractually, legally and ethically bound to promote and protect whatever is in the Seller’s best interests. That means obtaining the highest possible price, closing on the Seller’s schedule and with the fewest concessions, repairs or credits to you, the Buyer. Listing agents have a fiduciary duty to sellers, as well as loyalty and obedience to the seller.
For the listing agent to fairly represent you, as a buyer, they would have to ignore their duties to their seller. If the listing agent can get you to write an offer on the property, they are most likely entitled to twice the commission being offered by the seller.
Seller’s Agent (sub or cooperating agent) – This is the agent, other than the listing agent, that you have contacted to show you properties. You may have been referred to this agent or found this agent through your own means. What’s important to remember is that this agent is also working for the seller, unless you have a signed Buyer Agency Agreement with that agent. If not, this agent is working WITH you, not FOR you! There is a huge difference between the two. Please read more about the Buyer Agency Agreement in the next section.
Buyer’s Agent – Without a Buyer Agency agreement signed, you are by default, the agent’s customer. As a customer, you are not due anything more than a legal transaction. You are not entitled to advocacy, your interests are incidental and the upper hand is held by those who have a signed, legal contract, which are the seller and their listing agent.
In order for your Agent to be looking out for your best interests, you and your Agent need to have a signed WB-36 Buyer Agency/Tenant Representation Agreement. This is the only approved form that the Wisconsin Department of Safety and Professional Services has approved for precisely this purpose. However, you are still not 100% certain that you’re “Buyer’s Agent” is always your Buyer Agent if that agent works for a large office with numerous listings.
Here’s why: at the top of Page 3 of the WB-36 is a section that requires you to initial one of 3 possible options. These options are to protect the agent and their supervising Broker from getting caught in the impossible position of being legally bound to fairly represent both sides of a transaction.
The (3) options are:
______ #1) I consent to designated agency
______ #2) I consent to multiple representation but I do not consent to designated agency
______ #3) I reject multiple representation relationships
HERE'S WHAT THE 3 OPTIONS MEAN
#1. Designated Agency – In a designated agency relationship, the supervising Broker may assign two agents to work with the parties: one to represent the seller as a seller’s agent, and one to represent the buyer as a buyer’s agent. Each agent provides full negotiation services to the respective client, offering advice and an opinion to assist that client even if that advice favors the interests of that client over the broker’s other client. Each agent also keeps the confidential information of each client private. Both parties must consent in writing to create designated agency.
What does this mean?
The agent’s supervising Broker assigns you a new agent to “advocate” for you. In reality, this agent is really “pretending to advocate” for you. This new agent doesn’t know you or your specific needs, wants and desires.
This newly assigned agent hasn’t toured any houses with you, compared your first and second choice in houses or outlined a contingency plan. They have spent no time with you and they are simply there to act like your Buyer Agent, despite the fact that they won’t get paid unless you BUY THAT PARTICULAR HOUSE!
Now that you’ve read and understand what Designated Agency really means, how is selecting option #1 above a good choice for you?
#2. Multiple Representation – In multiple representation (without designated agency), or “dual agency,” as we used to call it, the agents working with the buyer and seller take on a neutral role in negotiations. Each agent working with the parties prepares contract proposals as directed by the client, but may not provide either party with advice about how to gain advantage over the other. While a multiple representation relationship may limit the services provided to a particular client, it does increase the likelihood of the right buyer and seller finding each other. Without party consents to a multiple representation relationship, the company is not able to show its buyer clients the listings of its seller clients.
What does this mean?
Under this type of representation, two masters are being served and neither is pleased, all the while remaining neutral throughout the transaction!
Now that you’ve read and understand what Multiple Representation really means, how is selecting option #2 above a good choice for you?
If you consent to option #1 (designated agency) or option #2 (multiple representation) you are agreeing to “hire” a messenger. This agent basically becomes a neutral clerk who will fill out forms, operate a fax machine or attach digital documents to an email.
There can be no advocacy, no advice, no sincere communication on the pros and cons of any given situation that will be given to you. While the “Designated Agent” option looks and sounds very similar to a Buyer’s Agent, they still work for the supervising Broker who has both a buyer AND a seller and whose sole motivation is to get the deal done with zero preference for who gets the short end of the stick.
Worse yet, Multiple Representation takes it one step further and clearly directs the agent to become neutral with no pretext of acting in one party’s favor over the other.
This is the ideal situation for the supervising Broker and the Listing Agent. They get twice the money and their own interests are served no matter how the Buyer and Seller fare. To illustrate further, there are several large real estate offices that pay a BONUS to their Agents who close “in-house listings.”
Somehow, pushing buyers to the house that pays extra commission doesn’t seem like the sort of representation that most people would be willing to pay for.
Is it any wonder that “Agency Issues” are the #1 cause for Errors & Omissions insurance claims?
Chances are, the bigger the company for which your buyer’s agent works–including all the satellite offices within that company–the more likely that you will be forced into a designated agency or multiple representation situation and thus lose your advocacy.
#3. Rejecting the first 2 options (Multiple Representation Relationships). To ensure your interests are protected, this is the box you want to initial. In fact, when you work with a Full-Service Real Estate Agent, it’s the only box that can be checked. To do otherwise means that the you are open to the possibility of designated agency or multiple representation, which goes against everything an EBA stands for.
WHAT IS THE BEST OPTION TO PROTECT ME?
“Full-Service” Buyer’s Agent – None of the conflicts of interest exist when you use an EBA because the firms that they work for do not list houses. That means that they NEVER represent sellers, so there is absolutely NO possibility of a buyer losing their representation due to the inherent conflicts of interest written about on this page.
An Full-Service Real Estate Agent provides 100% homebuyer representation, 100% of the time.
As consumers become more aware of the options that are available to them when it comes to real estate agents, it would not be surprising to see them searc out the best listing agent that they could find to represent them in the sale of their present home, while seeking out and utilizing the services of the best Full-Service Real Estate Agent they can find to help them secure their next home, thus protecting and hopefully increasing their household net worth by conserving and maximizing their equity.
The bottom line in all of this is that Wisconsin homebuyers have many more choices than they’ve ever had before, and that the best choice for those seeking true representation is a Full-Service Real Estate Agent.