Buyers Agents Move Early To Stop Michigan's Designated Agency Bill
Compensation for the Buyer's representative.
Posted By: Ray Anderson, EBA - 04/05/2000 01:54 PM
Bryant,
The traditional listing compensation INCLUDES compensation for the buyer representation. It was the norm when the buyers were represented by the listing brokerage. It was for the total brokerage services. It was the cost of brokerage for the transaction.
When the MLS system evolved and cooperating brokerages became sub-agents, just like the associate licensees of the firm, they were offered the same split as the listing firms associates for the buyer representation although they had the same duty to the seller as the listing brokerage. The coop was paid by the listing brokerage from their total compensation, not by the seller.
The notion the seller pays the whole compensation and not the buyer is untrue. The market value of the property includes brokerage for both seller and buyer representation. Tradition simply dictated the buyer part in the listing commission.
When exclusive buyer representation became recognized (and the listing brokerages realized the risks they were assuming from sub-agency!) the compensation model of both sides comming from the listing compensation was not changed. Only the requirement of a cooperating brokerage to be a sub-agent was deleted and exclusive buyer representation formally recognized.
The coop brokerage was still treated as an "employee" of the listing agency for compensation and due only to members of the MLS per the unilateral offer of compensation to cooperating brokerages. Tradition still didn't include forming a written agreement with the buyer including compensation so the offered coop fee was depended on by the buyer representative.
Now we have buyer/broker agreements where compensation is separately negotiated between the buyer and their representative. Actually buyers have been deprived of the opportunity to negotiate the compensation of their representative by tradition. The "employment" of the buyers representative by the listing brokerage is now inappropriate. Listing brokerages (and lenders!)now need to recognize the existence of buyer representative compensation separately negotiated and different from the offered MLS coop.
What needs happen now is for the listing agency to contract for just the traditional half for the listing activities and a separate MLS coop. They should negotiate their buyers compensation directly with the buyers. Both seller and buyer fees should be related to the actual level of representation offered. Fiduciary agency representation should be worth more than dual agency or non-agency.