When a market is shifting away from being one that favors sellers -- as is happening in many parts of the country today -- many buyers are inclined to think that they should be getting deals. What constitutes a "deal" is, of course, defined individually by each buyer.

So, when the seller won't budge, or won't budge sufficiently, some buyers feel a need (in pursuit of their inherent right to a deal) to extract a financial concession from the agent or agents. Here's the sort of thing that happens.

Suppose the property is listed for $700,000. The buyer initially comes in offering $600,000. Counter offers go back and forth and finally stall at $650,000. But this is not low enough for the buyer, who then says something like the following. "I have an idea. You, Mr. Agent, write up another counter offer at $640,000. But in the offer, you specify that both the listing agent and you, the buyer's agent, will each cut your commissions by $5,000. That way, I get the property for $640,000. The seller nets the same as if he had sold it for $650,000. And you real estate guys still make plenty of money. It's a win-win all the way around!"

Before getting to the main issue, let us note a couple of things. First, it should not be thought by agents that, if only the buyer and his agent had executed a buyer-broker agreement, then this kind of thing wouldn't happen. Nothing can prevent people from trying to renegotiate something that they had already agreed to. Their renegotiation may or may not be successful, but that is another matter.

Second, nothing prevents a buyer and his agent from entering into an agreement whereby the agent may willingly forego a portion of the commission in order to help the buyer achieve a more favorable transaction. Or, a buyer's agent may agree to rebate a portion of his commission to the buyer. Generally, though, the agent likes that to be his idea; but that, again, is another matter.

What is particularly problematic about the scenario we have sketched is that the buyer is seeking a commission concession from the seller's agent. There are at least two issues to be considered in this regard.

For one thing, brokers and their agents are not parties to the purchase contract. The buyer and seller can agree to all sorts of things in the contract between them, but that has no bearing on the actions and fees of others. They could agree in the contract that a structural engineering inspection shall cost no more than $25, but that doesn't mean the structural engineer is going to work for that amount. Commissions, including the amount to be shared by the listing office with the buyer's agent, are determined as a result of separate contractual agreements; and nothing agreed to only by the two parties to the purchase contract can change that.

Secondly, if the buyer's agent is a Realtor® -- a member of the National Association of Realtors® -- a good case can be made for saying that writing the offer as suggested would be contrary to the NAR Code of Ethics, to which all Realtors® subscribe.

As it now stands, a Realtor® is prohibited by the Code (Standard of Practice 16-16) from using the terms of an offer to attempt to modify a listing broker's offer of compensation. Of course, this is usually taken to apply to cases where the buyer or tenant's agent is seeking to increase the amount of commission offered to him. For example, if a lease listing offers a commission of $1,000 to the tenant's agent, an agent writing up an offer to lease cannot, ethically, include in the contract that the lease commission to him will be increased to $1,500.

The logic of this, clearly, is that the offer cannot be used as a tool to reduce the amount of commission for which the listing agent has contracted. The reasonable presumption here is that there is only so much commission to go around, and any increase to the buyer or tenant's agent would result in a decrease in that which goes to the listing agent. But that result is just what is happening in the scenario we have envisioned. By the same reasoning, then, it would be unethical for a Realtor® to construct such an offer, even if his principal wants him to.

If we were in the legal arena, we might construe such behavior as a wrongful attempt to interfere with another party's prospective economic advantage. But that is a topic for another day.