I saw this post by Janine Wilson, a top REALTOR and Exclusive Buyer’s Agent in the Johnson City Tennessee marketplace. She says some things that we’ve been thinking for a while:
Is it Exclusive Properties or Exclusive Agents that Home Buyers are looking for today? Why all of the Confusion?
In real estate and other commerce, Encarta Dictionary defines the word “exclusive” as ”restricting trade in some goods or services only to certain people or to those who have signed a contract or agreement.”
An “Exclusive Buyer Agent” restricts his practice of real estate to ONLY real estate BUYERS, never sellers. But the second and most important qualifier for an “Exclusive Buyer Agent” is that an EBA can NEVER practice real estate in a company that lists property!
Many real estate buyers mistakenly think that by signing the state contracts which are mistakenly (or misleadingly) named “Exclusive Buyer Agency” Contracts/Agreements, that buyers are getting “Exclusive Buyer Agency Services.” That is far from true in most instances, and states should cease and desist confusing home buyers in this manner!
The word ‘exclusive’ has several meanings; but according to NAR® and NAEBA®, the word ‘exclusive’ in labeling an agent or an agency practice has only one meaning.
The National Association of Realtors® (NAR®) in their 1993 copyrighted publication, Agency: Choices, Challenges and Options®, defined Exclusive Buyer Agency as follows: “The practice of representing only buyers and never sellers in a transaction. The company never lists a seller’s property and thus never has a seller as a client…..” The National Association of Exclusive Buyer Agents (NAEBA) was founded and based upon NAR’s strict definition of Exclusive Buyer Agent/Agency.
So why then, do states name their agency ‘contracts’ Exclusive Buyer Agency Contracts? Here is my answer to that question, after almost 15 years of practicing as an Exclusive Buyer Agent in an Exclusive Buyer Agency!
States across the nation were being criticized for not providing home buyers with adequate disclosure of the type of agency a real estate agent was practicing. The numbers ranged from 63% to greater than 87% of home buyers who had no idea who their agent really worked for, even after they purchased a home. The buyers received no adequate verbal or written discloser before purchasing.
Buyer Agency became a popular catch phrase to describe a new breed of agents who worked for buyers. Designations for Buyer Agents became popular, and buyer agents did not like showing buyers so many homes, just to see them walk away and buy from the listing agent or another buyer agent.
Exclusive Buyer Agents, again those agents who do not ever work in or for listing companies, had Exclusive Buyer Agent contracts that are loyalty agreements between the EBAgent and the Buyer. Those EBA agreements, aka contracts, spell out specifically what the agent will do for the buyer (including no conflict of interest as in buyer/seller agencies) and how, when and by whom the agent will be paid.
In creating standard forms for agents in various states to use for their real estate transactions, states began by creating disclosure forms describing the types of agency practiced in their state. Invariably, Exclusive Buyer Agency was left off state lists or mis-defined.
In my own state of Tennessee, the state describes and defines only two types of buyer agency: ‘Designated Agent for the Buyer‘ or ‘Agent for the Buyer‘. Once again, Exclusive Buyer Agency is ignored completely. And since real estate agents are advised to used the state contracts or risk not being covered by their Errors and Omissions insurance, it is time for states to recognize what NAR defined in 1993 as EXCLUSIVE Buyer Agency.
Tennessee’s only options for establishing a written buyer agency relationship are 2 new 2009 state contract options: (1) Buyer Representation Agreement (non-exclusive) Designated Agency contract and (2) Buyer Representation Agreement (exclusive right to buy) Designated Agency contract.
The ‘Exclusive Right to Buy‘ Contract does NOT mean that the buyer is working with an Exclusive Buyer Agent; it merely tells the BUYER that he cannot use any other agent except that specific Buyer Agent to buy a property, or he owes that agent a commission. No wonder buyers are so confused when their own real estate commissions and associations cannot get buyer agency designation and definitions straight!
In the state of Tennessee, I suggest the following:
There should be a separate category of Buyer and Seller Agents, as NAR original described in their 1993 Agency manual to include:
Exclusive Buyer Agents and Agency: These agents and their agencies NEVER list a property or represent a seller, nor are they affiliated with any agency that lists property or represents sellers.
Exclusive Seller Agent and Agency: These agents and their agencies NEVER work for buyers or represent a buyer, nor are they affiliated with any agency that works with or represents buyers.
This would still allow all of those agents who both list and sell properties to continue defaulting when necessary to other forms of representation, i.e. designated buyer and designated seller agents, agent for buyer, agent for seller, transaction brokers, facilitators, dual agents, etc., depending upon who lists the property or who has the buyer.
But until states recognize and list Exclusive Buyer (or Seller) Agents in their disclosures, descriptions, and definitions for agency contracts, the confusion perpetrated by well-meaning boards and forms committees will continue.
Remedying and recognizing this one basic NAR definition of EBAs in Tennessee and throughout the United States would, once and for all, clearly identify those agents and agencies who practice one, two, three or all of the various types of agency in real estate transactions. The ‘remedy’ in no way states that one type of representation is better or worse than another, but the clients can then identify ALL agency types and make an informed decision, without all of this confusion
You can see this post and the rest of Janine’s blog here.