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Is Your Agent Your Friend? Maybe Not.
Are You being Romanced, or Represented?

By the mere nature of the real estate buying and selling process an atmosphere of potential intimacy is commonplace. Real estate agents cannot help you find your dream property or the right addition to your investment portfolio unless they know what you do, how much you make, and how much money you have to spend. Through the normal course of events you will tell them about your family, your lifestyle, your hopes and dreams. 90% of selling is listening and a good salesman is a good listener and knows how to ask just the right probing questions to get you talking. Real estate agents work to form relationships with the buyers they are working with, and sometimes those relationships become lasting friendships --- I know because I have been blessed to have a number of friendships with former buyer clients. But a buyer and agent relationship can also go terribly wrong, especially when a buyer shares all those personal details with a real estate agent and then finds out the agent has not been representing them or working in their best interests. It was never disclosed to the consumer who the agent was working for.

Forming a friendship is not something that happens over night, but a business relationship with a real estate agent by necessity forms more quickly, so you need to be careful about how intimate that relationship becomes before you are certain the real estate agent is truly on your side. As of July 1, 2005, changes in Massachusetts Real Estate Agency Law mandated all real estate licensees' to present consumers with the "Massachusetts Mandatory Licensee Consumer Relationship Disclosure" form at their first face-to-face meeting to discuss a specific property or properties. The form is based upon the idea that real estate agents offer several levels of agency representation. They can represent the seller, the buyer, both or no one! You need to understand the various levels of representation, but if you are confused after reviewing the definitions do not despair, I think most real estate agents are also confused. For one thing, the disclosure IS NOT A CONTRACT. If the agent who presents you, the buyer, with the disclosure form has checked off “Seller’s Agent”, that means they have signed a separate fiduciary right to represent contract with a Seller and they are not on your side. Here is a question for you. If they check off “Buyer’s Agent”, do they have a separate signed fiduciary right to represent contract with you? If your answer is no, they are not on your side. You see, it is confusing and to make matters even more confusing you will be informed that your agent may not represent you exclusively as they wish to act as a Dual Agent or a Designated Agent. I have a whole section devoted to explaining (Disclosed) Dual Agency and Designated Agency.

CAUTION: Despite the efforts of the Massachusetts Board of Registration of Real Estate Brokers and Salespeople to enforce the Mandatory Agency Disclosure law, a state investigation at the beginning of September 2010 discovered that only 6 percent of Massachusetts real estate licensees properly disclosed to consumers whose interests they represent.

I am not the only one who thinks the Massachusetts Mandatory License Consumer Relationship Disclosure form is poorly constructed and does not clearly explain the subject of "BROKER AGENCY", thereby leading to self-serving prevarications.

In order for you to legally be represented by an exclusive buyer agent as your fiduciary you will need to enter into an Exclusive Right To Represent Agreement, and that means a contract that does not include the option for your agent to transition to dual agency or designated agency. The second part of my answer as to how you will know your real estate agent is on your side is somewhat abstract, but probably easier to answer. If you feel your agent is not knowledgeable or working as hard as you expected them to, they are not on your side and you need to fire them.

Exclusive Buyer Agency requires a passion for helping people and advocating for their best interests and only on their behalf. Remember, if your agent is not representing you exclusively they are not your advocate, cannot advise you on a negotiating strategy, cannot advise you on an offering price, cannot point out potential problems to you with a home, cannot provide you with information about the Seller or Builder (their reason for selling, price they paid, how long the property has been on the market or how many times the property has been for sale, or a builder's reputation or any issues with his development). They are not your friend. Here are some excerpts from an article to illustrate some notions about the home buying experience.

Courtesy, October 4, 2004

They may come together for what seems like a straightforward business transaction - the sale or purchase of a home - but the relationship between broker and client can be an emotional minefield, ripe for love or hate, admiration or scorn, friendship or hostility.

If nothing else, it is a highly personal connection. A broker, after all, probably knows as much about the client as any therapist, lawyer, accountant or even spouse.

Brokers know what their clients earn and what they're worth - they have to, in order to figure out which co-ops make sense for them. They may know if they're planning to leave their jobs, or their spouses. "People who are planning to get divorced may not yet have told their friends or their children but need an appraisal before dividing the assets," said Daniela Kunen, a managing director of Douglas Elliman. "You hear very personal information."

Whatever it is, the connection is rarely tepid. Frederick W. Peters, president of Warburg Realty Partnership, said that he tells novice agents that they are in a business that fosters short-term intimacy. "You are immediately plunged into a close relationship with a buyer or seller and then when the transaction is consummated, it is over, unless you choose otherwise." he said.

Many people do choose otherwise, having planted the seeds of enduring friendship in the collaboration to buy or sell a residence, or, if they live in the same community and run into one another in the supermarket, an ongoing acquaintanceship.

Peter Fyler Sidebar: Most of my former Clients are friends of mine today and they still know they can call on me 5, 10, 20 years after I helped them purchase their home.

Strong bonds in individual cases notwithstanding, as a group brokers and clients do not hold one another in particularly high esteem.

Preliminary findings of an online survey of attitudes of brokers and buyers who have bought properties in Manhattan in the last three years show that 78 percent of the 51 brokers who responded and 69 percent of 152 buyers and sellers "strongly or somewhat strongly" agreed with the premise, "Most people don't trust real estate brokers or expect much from them." The survey was commissioned by Braddock & Purcell, a real estate consultant that brings brokers and clients together, and carried out by Penn Schoen & Berland Associates, the market research firm.

"You can develop a close relationship with your broker, but it is in the context of an industry for which people do not have a high opinion," said Paul F. Purcell, a partner in the firm.

Among the qualities considered essential for good brokers are: discretion; trustworthiness; sensitivity; diplomacy; serious knowledge about neighborhoods, buildings, boards, management, and potential pitfalls; an ability to listen; and strong intuitive instincts.

Intuition is particularly prized. "There is a creative component to this, fitting a round peg into a square hole," said Rosette Arons, a vice president for Stribling & Associates. "The creative process comes in when you hear them say, `I need a three-bedroom with such and such,' and that is not at all what they want. I listen to what they want, even when they may not know what that is, and I can tease it out of them."

Peter Fyler Sidebar: On a number of occasions, because I am a good listener and make it my job to understand my clients and really know what it is they want, even before they know themselves, I have called up my Client and said, "This is your house and you have to buy it.", or on the other hand when they think they want something that I know would be wrong for them in the long run I have said, "You cannot buy that house!". I am not shy when it comes to my opinions and my intuition as to what is right or wrong for my Clients. I take the time to know them and to know what they want since doing the wrong thing would result in a very costly mistake.

Timothy Melzer, a 27-year-old vice president for Douglas Elliman, prides himself on turning customers into friends. "By the time it is over, almost all of them call to say they miss talking," he said.

One of those clients, Dr. Anthony W. Cincotta, was called upon to show an unusual degree of trust when he decided to buy a penthouse at Morton Square, the town house, condo and rental complex at Morton and West Streets, about 18 months ago. "It is hard to trust anyone in New York, and I am one of those types who asks people to take off their shoes before walking on my carpet," he said.

Dr. Cincotta, a neuropsychiatrist and family physician at Catholic Community Services in Newark, had been looking for a penthouse with outdoor space, when Mr. Melzer proposed the Morton Square penthouse. "I froze when he told me about it and said, `This is $1 million more than I wanted to spend,' " he recalled. "He kept arguing with me and said, `This is where you have to be, this is where you will make money.' I gave in."

After Dr. Cincotta agreed to buy it, Mr. Melzer went to great lengths to cement the deal. "The developer was demanding a check for more than 10 percent, $191,500, an hour after it came on the market, so he needed his checkbook, which was in Manhattan," he said. "I had to drive to Newark, get his keys, drive to Manhattan, go to his apartment, get the checkbook, drive to the sponsor's office, pick up the contract, drive back to New Jersey, get the contract signed and the check written. By the time I got back to the sponsor's office, they had gotten another offer, but fortunately it came from someone who didn't have their checkbook."

The property, which closed on Sept. 23, has appreciated more than $1 million since the initial listing, and Dr. Cincotta will rent it out, he hopes, for $19,000 a month, Mr. Melzer said, and eventually live in it.

The two have been friends since. "Once you develop trust and you talk on the phone everyday, the walls start coming down," Mr. Melzer said.

There are differences between being the broker for a buyer, whose primary goal is to find a home, and the seller, whose goal it to reap the highest possible profit.

Peter Fyler Sidebar: Sellers have a written contract with their fiduciary and any buyer who enters into the market today without the same written contractural fiduciary advantage, is foolish.


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