There’s always something to howl about.

Ask the Broker: Can buyers negotiate for the buyer’s agent’s commission to be paid to them instead . . . ?

We have been focussing on new construction and have been meeting directly with builders and their agents. We have not been represented by a buyer’s agent up to now. Our strategy has been to save on commission by dealing with a single party.

We recently looked at several resales where we sought out the listing agents, with the same commission saving strategy. We found a home we like, but the seller is being relocated by his company. The seller will be reimbursed for a full commission paid to the seller’s realtor. The normal strategy of reducing the commission has disappeared as any reduction in commission will ultimately result in less money in the seller’s pocket.

First, I’d be curious where you learned your commission reducing strategy. Is it something you read somewhere or learned at a seminar, or did you work it out on your own? I ask, because, while it is not impossible, it seems to me to be very implausible.

A new home builder pays a buyer’s agent’s commission as a gratuity to that agent for making the introduction. In Arizona, licensees are expected to actually represent their new-home buyers, but the builder certainly doesn’t want or expect this. I can drop off a party just like dumping the kiddies off at day-care and still get paid. I do not endorse this way of working — just the opposite — but the builder would have no problem with it.

But: Because the builder is paying an agent to introduce the buyer to the builder, why would the builder pay you anything. You’re already there for free. The sine qua non event the builder might be willing to pay me to effect has already been effected without any need to pay a bribe. This is why builders won’t let me represent you if you show up at a new home subdivision without me: The introduction has already taken place. What do they need me for?

In fact, right now — and uniquely right now — you just might be able to get builders to cough up some extra coin to get your name on the paperwork. I doubt they would give you as much as they would have given your buyer’s agent — this on top of all the other incentives they might give you — but you never can tell.

The other end of this, going for the buyer’s agent’s share of the commission on a resale home, is probably even more hopeless. The contract for the commission is between the seller and the listing agent. If the listing agent is the procuring cause of the sale — meaning the listing agent exclusively initiated an unbroken chain of events leading to the sale of the home — the listing agent is entitled to 100% of the sales commission, per the terms of the Listing Agreement.

There are gray areas, and we bat them around quite a bit here and at other real estate weblogs. But from the standpoint of real estate law, the listing agent has no reason to share any commission with you. As with the builders, it doesn’t hurt to ask, but I’d be surprised if you got happy news even one time out of twenty.

In other words, your commission reducing strategy seems unlikely to me to work even now, in a very strong buyer’s market. In a balanced or seller’s market, it would never fly at all.

Question #1: Can I now hire a buyer’s agent to represent me after being shown the property by the listing agent?

Probably not. The listing agent can agree to permit you to do this, but doesn’t have to. The listing agent is the procuring cause of the sale and is entitled to the full commission. If you interviewed buyer’s agents, they would probably shun you unless the procuring cause issue had been dealt with in writing.

For what it’s worth, if you asked me if you could bring in a buyer’s agent, I would say yes in a heartbeat — but it’s not because I’m a nice guy.

Question #2: Can I make a arrangement for the buyer’s agent to “reimburse me” for all the leg-work I have done in seeking out the property. I would like to propose a 50-50 split of the buyer agent’s commission. The agent merely needs to present the offers. No showing work or researching for me.

Assuming the procuring cause issue has been dealt with, this is eminently doable. For now at least, I would represent you in a situation like that for a flat fee of $5,000. I have a bunch of new builds in play on those terms. At least 25% of the National Association of Realtors is essentially unemployed, so negotiating a favorable commission shouldn’t be hard. Right now the commissions on spec homes can be outrageous, as much as 10%. If you bought a $300,000 home and paid me $5,000, you might have $25,000 to throw at your down payment. This is why you should always take your agent with you to look at new builds. Even on resale, you could get $4,000 from me, maybe a lot more from a hungry agent.

The important point here is that, at least in Arizona, it is perfectly legal for your agent to rebate a portion of his commission to you. Everything needs to be ratified on the HUD-1, and the gifted funds may be taxable to you as income — check with your accountant. In any case, this much is doable and probably not difficult.

Question #3: If the above options are not available, how can I get the listing agent to provide benefit to me for the fact that they are getting dual commission merely because I sought them out? Can I have a contractual relationship with selling agent similar to Question 2 above of to provide some of my desired upgrades after the sale? Can I encourage the selling agent to pay for seller upgrades, so the price remains high for the seller, while I receive upgrades in the sale.

You can ask for anything you want. The listing agent does not have to say yes, and doesn’t actually owe you anything for the legwork you have done. In this market, I would not hesitate to ask for anything, but don’t be surprised if the answer is no. If you want to discount a house, discount it. You can make the offer more attractive by making a large earnest deposit, by paying cash or making a large down payment, by waiving repairs, etc.

In fact, it might make sense for a listing agent to make a deal such as you suggest. Houses are selling in Phoenix at a fairly normal rate, but our standing inventory is very large. If I can get you to take my listing off the market, that might make sense to me. Fifty percent of something is more than one-hundred percent of nothing. Even so, I would expect an appeal like this succeed very rarely.

Four other contributors to BloodhoundBlog have broker’s licenses, and one or more of them may take a swing at the ball, so you may get more (or less!) encouraging words from one of them.

For my part, the house is the house. It’s worth what it’s worth. Right now, in Phoenix at least, homes are worth less than they were a year ago, but not much less. You may be able to get some discounting from the seller — particularly from new home builders. Your chances of getting commission rebates from a buyer’s agent are pretty good right now, provided the buyer’s agent’s right to get paid is protected. Your chances of getting a commission rebate from a builder or a listing agent might be better right now than they have ever been before. But they are still not very good…

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