Boulder, Colorado broker Betsy Miller is the only exclusive seller's broker in Boulder County, and possibly the whole state. She says other brokers think she's crazy to try exclusive representation, considering that the way has been nicely paved by designated brokerage statutes for brokers to work both "sides" of the transaction as non-fiduciaries.

But to Miller, designated brokerage doesn't work. The definitions are confusing, and the conflicts of interest are too apparent. Under Colorado's law, all licensees are brokers, and can offer fiduciary-level service or transaction-level service, and both forms of service in the same transaction to either side. A broker can be a seller's or a buyer's agent and a transaction broker to the other party, but if they want to close a deal, the broker can alter fiduciary-level service to transaction broker-level service by presenting this form to his or her former client.

"How can you represent someone as an exclusive seller's agent, and then later tell them that now that you brought the buyer you are only representing them as a transaction broker?" says Miller of the dilemma. "That's a betrayal of trust. You were their agent, and now they don't know what you are. I just can't do it. I prefer to tell buyers that I can't help them. I'll refer them to a good exclusive buyer's broker."

Is a clear conscience worth making less money?

Miller says she is sleeping better at night, but she admits that principles don't come cheaply.

As an exclusive seller's broker, Miller has lost two income streams - one from buyers, and another from sellers she's represented as a fiduciary who want her to represent them on their next purchase.

She has no blueprint to follow. As an independent working out of her house, she is too small to be a threat, but finds it that much more difficult to differ from traditional practices. "If I say there is a conflict of interest," says Miller, "that's like saying everyone else has the conflict."

Anyone on the cutting edge is bound to get a little bloody, and Miller is no exception. She's had the occasional threatening phone call to give up her exclusive status, and some brokers have simply told her that they don't understand the point she's trying to make.

Others have told her they believe that her method is how real estate ought to be practiced and will be practiced ten years from now. Its main strength is that it eliminates confusion, something Miller says the Colorado real estate commission has failed to accomplish with its real estate statutes that change almost yearly.

"It's getting ready to change again," laments Miller. "Someone files a lawsuit, and they just reach for another band-aid. I don't think anyone is really thinking this through."

Miller decided that she had had enough when she found that she simply couldn't explain the brokerage laws to consumers satisfactorily. One client, a buyer who also happened to be an attorney, hit the roof when Miller suggested that if she were to buy one of Miller's listings, Miller would have to modify their agreement to transactional brokerage. Miller took classes to try to sort it out, taught by an attorney, but still couldn't get the relationships to reconcile in her minds or those of her customers and clients.

"The buyer still thinks you are representing them, even when you aren't," says Miller. "That's where the conflict comes in."

"We present the buyer or seller with a sheet of paper that the real estate commission authorizes us to give to them," says Miller, "but they don't have to sign it. We ask them to, for our records. Some brokers will ask them if they want the broker to act as a fiduciary client broker or a transaction broker, to be an advocate or not. Later, you can go back to your client and tell them that you are now acting as a transaction broker. Some say absolutely not. Then what do you do? Now you are standing in the way of the buyer and seller. It's very confusing, and it confuses the consumer."

But advocacy isn't as clear as it should be, either, Miller has learned. "I've had sellers I've worked with ask me to represent them as buyers. They tell me they 'won't tell anyone.' They don't understand."

So Miller is starting to refer these former sellers and buyers who contact her through ads and the Internet to exclusive buyer's brokers. She realizes that if she is going to make up the lost income of not being able to collect from both sides of the transaction that referral fees will make up a good bit if not more in the long run.

The exclusive buyer's brokers love the business she's sending their way, and Miller is positioned to get their referrals as an exclusive seller's representative.

"I don't try to be adversarial between the buyer and seller," says Miller.

So why take the less traveled path of seller agency?

"I think I m good at negotiating and pricing property to sell quickly," says Miller. "I analyze listings, prices, and see many properties to see what's going on, and I always keep ahead of the trends - not behind. I don't like stale listings - they create lower property values, and buyers always want to know how long a property has been on the market, and they offer less."

Her unique service advantage is staging. "I was former director of the Boulder Museum of Contemporary Art, so I have an art background. I used to buy properties to fix them up and sell them, and I learned that sparse furnishings made them sell faster and for more money. As a matter of course, I stage all my listings by using the seller's own furnishings or bringing in other furniture and accessories to bring that property to another level.

"I give a personal approach to my listings."

Miller says she feels good about becoming a specialist. "When you need a gynecologist," she says, "you don't go to an ears, nose and throat doctor."

Published: September 5, 2003

Use of this article without permission is a violation of federal copyright laws.

Blanche Evans is the award-winning senior editor of Realty Times, the Internet's leading independent real estate news service. She is featured daily on the Realty Times Video Network in the "Realty Viewpoint" segment. Blanche has been named one of the "25 Most Influential People In Real Estate" by REALTOR Magazine, and has been twice recognized as a "notable." In 2005, she was named "Top Reporter Covering the NAR" by Delahaye-Bacon's. Blanche is a renowned author of five real estate books. Her newest, Bubbles, Booms and Busts: Make Money In Any Real Estate Market, McGraw-Hill, was rave-reviewed by The New York Times. She was also selected from hundreds of real estate experts to contribute to Donald Trump's book, Trump: The Best Real Estate Advice I Ever Received: 100 Top Experts Share Their Strategies, Rutledge Hill Press, and is featured on page 68. Order Now Review - Honors In 2006, Blanche was selected among scores of candidates to author two consumer real estate guidebooks for the National Association of Realtors: The NAR Guide to Home Buying, and The NAR Guide to Home Selling, Wiley & Sons. She is currently planning two new books for the NAR and its members.       Known for her keen insight into real estate industry issues and for her ability to make complex subjects easy to understand, Blanche is a sought-after keynote and continuing education speaker. Real estate organizations from MLSs, to brokerages, to franchisors, to associations hire her to provide up-to-the-minute analysis of real estate industry news and advice on how to improve revenues. Her passionate delivery, peppered with stinging wit, is a huge hit with audiences and fans. Don Klein, CEO Greater Nashville Association of Realtors, Blanche Evans, Richard Courtney, president 2007, GRAR "The GNAR membership meeting last week featured Blanche Evans as the keynote speaker. Her comments and insights resonated extremely well with those in attendance and we have had many requests for copies of her PowerPoint Presentation. She was a terrific part of the membership meeting and convention program!" - Don Klein, CEO Greater Nashville Association of Realtors Coverage from WSMV, Nashville - 8-14-2007 That Interview Guy - Get Inside The Head Of Today's Generation 2007 AE Institute Session - To purchase 2006 AE Institute Session - Parts 1 2 3 4 5 6 7 8 9 HouseValues Mastermind call - Parts 1 2 Blanche's fireside chat with Jeremy Conaway, HAR - Click here. To contact Blanche, email her at . For more articles by Blanche, click here.