Introduction to Buyer Agent Responsibilities and Agreements
A Buyer Agent has a duty to represent the best interests of their client as is delineated in the Ohio Revised Code, Buyer Agents often require Buyers to sign an Agreement to ensure their Brokerage will be paid the entirety of the Buyer Brokerage commission in the event the Seller is not offering to pay it on their behalf. It is IMPERATIVE the Buyer thoroughly reads and understands the terms of the Buyer Agency Agreement, and negotiates out any unacceptable terms BEFORE they sign it.
The Importance of Understanding the Buyer Agency Agreement
Today I am sharing a TRUE story pertaining to the sale of a property listed with an Ohio Real Estate Broker in which the Buyer was procured via another Brokerage firm. In the interest of full disclosure, the listing Broker referenced herein is a friend of mine and has been practicing real estate for decades. The listing Broker utilizes the same appropriate business practices as necessary that I do, including full documentation and recording of conversations whether they are email, phone, text, or virtual in nature. In the interest of protecting the privacy of all parties I will not reveal any companies or names referring to this transaction. The Seller listed the property for sale offering a 2.5% commission to the Buyer Brokerage which was fully disclosed in the MLS and acknowledged by the appropriate parties, and the Buyer signed a Buyer Agency Agreement with their Buyer Agent that was legal and binding.
A True Story: Navigating Real Estate Transactions in Ohio
The Seller and Buyer entered into a purchase Agreement at a price of approximately $250,000 in which the Buyer, a Veteran, opted to select VA financing. During contract negotiations, including the original negotiation and subsequent negotiations for remedies, the Seller agreed to credit the Buyer a sum of $6,000 as concessions to be applied towards Buyer prepaids and closing costs. The day before closing the listing Broker received multiple requests from a Buyer Agent team member demanding the Seller immediately sign an addendum reducing the sum of Seller concessions and credit the Buyer brokerage a sum equal to half of one percent of the sales price in additional commissions. The Buyer Agent team member hemmed and hawed, then had the audacity to lie to the listing Broker and state this money was a tip from the Buyer before they disclosed the truth acknowledging the Buyer did NOT have the money to pay their financial obligation to the Buyer Brokerage according to the terms delineated in their Buyer Agency Agreement. While this did not financially adversely affect the Seller, the Seller was so upset by the lack of honesty, the Seller personally requested the Buyer Agent consider waiving the half a percent commission rather than causing additional financial burden to this Veteran Buyer. The Buyer Agent declined to respond. Therefore, knowing this caused no additional financial burden to the Seller, the Seller signed the addendum ensuring a successful closing.
Analyzing the Buyer Agent’s Conduct and Its Implications
- Why did the Buyer Agent team member lie to the listing Broker stating it was a tip from the Buyer rather than covering their commission obligation?
- Did the Buyer Agent discuss the half a percent commission shortage with the Buyer prior to the Buyer entering into the purchase contract, ensuring the Buyer was fully aware they would be responsible for the difference between what the Seller had offered and the stated amount in the Buyer Agency Agreement?
- Did the Buyer Agent discuss the ramifications of having to finance the additional half of one percent equaling $1,250 in closing costs and prepaids into the mortgage itself as the Seller would no longer be crediting that sum? Assuming $1,250 at 6% interest over the course of 30 years, the Buyer would pay an additional $1,448 in interest over the lifetime of the loan for a total of $2,698.
- Did the Buyer Agent provide the Buyer ample time prior to closing to determine if they could come up with the money elsewhere?
Financial Ramifications for the Buyer
As I am not party to the transaction, I will never know the truthful answers to these questions. Knowing the Buyer Agent team member CHOSE not to even address the commission discrepancy until the ALTA (settlement statement) had been presented on the day the Buyer was to sign their closing papers; knowing the Buyer Agent team member stated the money was a tip prior to acknowledging the Buyer did not have the money to fulfill their financial obligation to pay their Brokerage; and knowing the Buyer Agent team member advised the listing Broker that this mistake happens all the time – clearly indicates better practices could be put into place so as not to overwhelm the Buyer by limiting their financial options on the day of closing, and ensuring the Buyer has a complete understanding of the Buyer Agent Agreement prior to signing it.
How to Get Out of a Buyer Agency Agreement and Enforcement Thereof
Analyze the Agreement in its Entirety
A Buyer Agency Agreement is a legal contract; therefore, the agreement must be properly executed by all parties. All parties must have capacity to sign (of legal age, of sound mind, not coerced, intoxicated or under the influence of drugs, etc.) and possess legal authority to sign if signing on behalf of another entity or person. Carefully review the Buyer Agency Agreement to determine if there is language specifying terms in which the buyer may terminate the agreement prior to expiration and whether there are any penalty fees to facilitate said termination.
Breach of Agreement
If one of the termination clauses in the Buyer Agency Agreement applies to your situation, write a letter to the Buyer Agent stating your intent to terminate the agreement and provide the appropriate documentation, information, and clarification of fiduciary duties the agent has breached to support your course of action. The agreement to terminate must be signed by all parties to be enforceable. If the Buyer Agent is unwilling to terminate your Buyer Agent Agreement in accordance with terms that you find acceptable, you may reserve the right to pursue legal remedy by filing a claim in a court of law.
If you are unable to resolve issues or come to an agreement to terminate the Buyer Agency Agreement directly with your Buyer Agent, you may consider reaching out to their Broker directly. The Broker is responsible for all actions of their agents and has the authority to assign you to another agent, revise the Buyer Agency Agreement in accordance with terms that are mutually agreeable, or terminate it per your request.
If neither the Buyer Agent or their Broker will agree to terminate the contract, you may consider mediation. Mediation is facilitated by a neutral third party and generally less expensive and less time consuming than pursuing legal remedy in a court of law.
Retain Legal Counsel
Ohio Broker Direct, its Broker, and Agents always advise Buyers and Sellers to consider retaining legal counsel. If you are not comfortable requesting the termination of your Buyer Agency Agreement directly, you may be best served to retain legal counsel to advocate on your behalf. In the event legal counsel is unable to assist with an amicable agreement or termination on your behalf, they can file to pursue legal remedy on your behalf in a court of law.
Wait it Out
All Ohio Buyer Agency Agreements must include an expiration date. Therefore, if the Buyer Agent and their brokerage refuse to release you from the agreement, you are not in a hurry to buy and you do not want to pursue any of the other options, this may be the best alternative.
When the time comes to sell your home, it may be prudent to consider utilizing an Ohio Broker Direct Flat Fee MLS Listing rather than going the traditional route.
Selling real estate on your own without the assistance of a traditional service Real Estate Brokerage will require both commitment and due diligence for which you may be rewarded by saving thousands of dollars in commissions. Maximizing marketing exposure is key.
We have SOLD well over a BILLION DOLLARS in Real Estate & saved Sellers millions of dollars in Real Estate commissions. Please contact our team to learn how the For Sale By Owner Flat Fee MLS Listing Options at Ohio Broker Direct will enhance your marketing exposure to ensure a more expeditious sale, yielding a higher price with better terms that suit your specific needs. Reach out to us directly, visit our blog, or sign up for our newsletter at the bottom of this page to receive the latest information to ensure you have the knowledge to maximize your profit.
Joan Elflein, Broker