There’s always something to howl about.

More on Jay Reifert’s crusade to give buyers control over procuring cause

In his comments on Russell Shaw’s article, Jay Reifert Is Tired of NAR Hiding the Truth, Jay Reifert warns us early on that he is

spoiling to get this fight into the public eye

I suspect this may be driving his over-the-top diatribe. Too bad, because I think he makes a valid point that the practice of acknowledging procurring cause is not (always) in the client’s best interest. And in states like Arizona, agency is all about the client’s interest, which comes first, even ahead of the agent’s self interest.

Jay describes a situation that really does happen, way too often:

Buyers, though, are screwed over by Procuring Cause, PC, all the time. Here’s how it works: They go out looking at homes,willy nilly, not having any idea that they are creating bligations to any licensees. (The Secret Contract.) They find a house. Then, they begin researching their next steps.As part of their research, they discover buyer agency. Then,they start interviewing buyer agents. Then, they discover that the buyer agents are afraid to touch them, because they have already seen the home they think they want to pursue and the buyer agent doesn’t want to risk losing his/her fee to another licensee who may file a Procuring Cause claim.Hence, the buyer-due to no fault on their own part, as PC has NEVER been disclosed to them-loses their right to representation. It happens all the time. Theft of buyer rights. It’s heinous.

I would absolutely love it if home buyers always came armed with the type of agreement that Jay suggests, putting listing agents on notice that the buyer is represented. Lord knows I try to educate my own buying clients — I explain the benefit of always having me escort them even to new home builds and open houses, I explain the disadvantages to the client that can be created if they don’t have me escort them, I give them a supply of my business cards, I even give them the American Dream Home Buyer’s Passport. Still, I find myself running interference because my buyer client just happened to stop at an Open House she had noticed on the way home from the mall, or took a ride out to Surprise to look at model homes without me, because they were just exploring the possibility of moving to Surprise and didn’t want to bother me.

I agree with Russell that procurring cause snafus are not created, in general, out of real estate agents’ avarice. And certainly it’s foolish to claim that our entire industry, starting with the NAR, wants to shackle home buyers to a listing agent, when the buyer wants his own representation. The NAR represents all of us, listing brokers and buyer brokers. And most of us will wear one or the other hat in any particular transaction.

Russell’s solution, of course, is the best one — that is to educate the agent to do better:

If someone called my office and wanted to buy a house (that we had not shown them) the very FIRST question we would ask them is “how did you find out about this property?”

Maybe the reason this isn’t the first question that every listing agent asks is that so many of us entered the industry in the past two years and are still getting our routines down; or maybe because too many of those new agents don’t don’t get the type of OTJ support from their brokers that agents used to get; or maybe there is a little desperation out there (as compared to avarice) resulting in sloppy practice. This happened to me early this past summer:

I had been out shopping for houses with my pet-sitter. Over our years of working together, we have become friends and you can imagine that whenever she has a real estate question she comes to Greg or me for answers, much as my mother does. So we have nearly as firmly an established agency relationship as if I was looking for houses with my mother. One Sunday afternoon, my pet-sitter/friend/client was out with her husband and they stopped to look at an open house. This was after I had given her the speeches about procurring cause, after I had given her my business cards and a Passport, after we had figured on part of my commission going back to her to help her with closing costs. And of course, she liked the house and wanted me to write the offer. The buyer’s actions had created a procurring cause problem. I called the listing agent and explained the situation, but she stubbornly wanted to hang on to the buyer broker’s commission. Negotiation isn’t about beating up your opponent, it’s about understanding your opponent’s motivation. And during our conversation I learned that the listing agent had listed this $100,000 condo for 4%, offering 3 of those points to the buyer’s broker. An open house sale was the only hope this agent had of walking away with more than just covering her car expenses for the month. So we ended up splitting the buyer’s 3% three ways, which still gave my client the bump she needed to negotiate the rest of the terms of the offer. My guess is that even if this particular agent knew to ask the question that Russell’s agents always ask, she avoided it, hoping to earn a living that month off of the sale of this home.

As with offering buyers a share of the buyer’s broker commission, buyers really don’t pay attention to our business. The buyer’s focus is on the house and how he’s going to pay for it. Maybe if our industry pays attention to Jay, this issue will trickle down and capture the buying client’s interest, too. Maybe, hopefully…

I’m with Russell when he explains

If it was you sitting on that Procuring Cause panel – would you vote to reward a poacher? Some other agent got them to the house or showed it to them and now “here is Jay to give them a discount if they would only use him”. What – really – is the difference between that and shoplifting? In both cases you are taking something that does not belong to you. You can say, “Well I am offering the consumer a discount – I’ll give them part of the commission back”. Only it would be a commission you did not earn. If you had your way there would be Realtors running ads that said, “After you find what you want with some other agent, call me and I’ll write it up for you – but I’ll give you some of the commission back”.

Actually, that old cowbird Redfin is running those ads in Seattle and San Francisco.

According to Jay,

Until buyers are mirandized…letting them know, upfront, before any obligation is secretly created by thieves like you and your ilk, procuring cause has no place in the modern world.

It is about a buyer’s right to representation. It is about a buyer’s right to know that they must do their homework-and decide whether they want representation, and from whom-before they are obligated by thieves like you.

Yes, I know this is blustering, but maybe this is what’s needed to grab our attention. Not my personal style, but now Jay has been covered in two Bloodhound posts…

Now that you have our attention, Jay, why don’t you share your solution with us? Would you just do away with using procuring cause as a means to understand who has earned the buyer’s broker commission? Just how do we get home buyers to protect their rights to chose their own representation?

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