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Should you (be
asked to) sign a Buyer Agency Agreement?
Recently I've been asked by several people about their chances
of cancelling a Buyer Agency Agreement. My response has not, I'm
afraid, been too encouraging. I've had to say that they've committed
themselves to a document that's, in effect, as legally binding as a Listing
Agreement. Accordingly, unless they make enough of a fuss, the odds
are against them and they'll have to wait things out through to the expiry
date (which I can only hope isn't as far into the future as, unfortunately,
it can sometimes be).
But I think this raises the question of whether you should sign a Buyer Agency Agreement in the first place -- and even whether you should be asked to do so. My answer in both cases -- however surprising it may seem -- will tend to be a resounding "No!" I do sympathize with my colleagues who favour the idea of tieing people down, but I think they overlook two important points -- at least as far as activity in the residential field is concerned. (And let me touch anon on some differences when it comes to what's called ICI real estate, which deals with industrial, commercial, and investment properties.) For a start, there is no actual requirement for the production of a Buyer Agency Agreement before a residential offer can be made. Instead, a "Confirmation of Co-operation and Representation" form has to be completed and signed by the buyer, the seller, and the listing and selling agents involved in the transaction. This clearly sets out the inter-relationships among the different parties and serves, if needs be, as legal confirmation of them. Into the bargain, I think it ought to be recognized that a Buyer Agent is only one person and, unlike a Listing Agent, doesn't have several hundred other people working for his/her client, which is the case when a property is listed with the local MLS system. It therefore seems to me to be somewhat unfair to limit the client's options if the Buyer Agent's service doesn't live up to expectations. As I've implied, I do ask some of my commercial clients to give me a signed agreement, but this is mainly because the practice is fairly well established when dealing with ICI properties. Moreover, many business owners prefer to keep their interest in selling hidden from the public at large. Rather, they choose to enter into exclusive or open listings that are made known to only a relatively small number of potential buyers. It's also quite common to have buyers give a written undertaking to treat information with strict confidentiality when it's disclosed to them by the seller. In fact, many sellers won't impart the details of their business without such an agreement. However, these are circumstances that rarely, if ever, apply to the residential field -- and, when they do, the answer, at least in my opinion, lies in a similar use of an exclusive or open listing. I must admit that I discuss the Buyer Agency Agreement idea in my website and mention that the Canadian Real Estate Association is keen to see it adopted. I also offer a simplified version of the official form. My purpose, though, is more to explain the need for a clearly established relationship with a buyer than with a thought of forcing someone to let me take care of them. In fact, if the truth is told, I seldom ask my residential clients to sign one (and, for that matter, I only suggest it to my commercial clients when we're looking at non-MLS listed properties). Instead, I rely on earning people's trust by the interest I show in helping them make the best possible buy. Moreover, I find that I rarely lose the chance of earning a commission, even if clients stumble across "the one right house" on their own. My experience has told me that all that's really necessary is that I make my position clear to the people who contact me: that I fully intend to work for them as opposed to the seller and hope that, in return, they will allow me (and me alone) to prepare, present, and negotiate any offer they decide to make. Into the bargain, I believe that, if they think I'm not measuring up properly, they should feel free to find someone else who they think will do a better job of looking after them. If, then, you are asked to sign a Buyer
Agency Agreement, I'll suggest that, at the very least, you should have
become comfortable with the agent who proposes it. You should
have had sufficient demonstration of his/her interest in finding something
suitable for you and, like as not, to have already had him/her show
you one or two possible places.
It doesn't really matter if a Listing Agent takes things easy: there are enough other agents out there, any one of whom could bring a buyer to your property. But, as I see it, to simply take a Buyer Agent's promise of appropriate attention to your needs may prove to be an unwise decision. I'm aware that few of my colleagues will agree with my views, but with fifteen years now behind me in this business, I've yet to find that people let me down -- any more than I plan to do in helping them get what I like to describe as "the most house for the money."
Duncan Pollock, Real Estate
Broker, |
This is an online copy of my January 2004 newsletter -- and you can find a list of the other ones I've sent out by clicking here. If you aren't already included in my mailing list, you are most welcome to add your name to it so you can receive a similar "Shot Across the Bow" each month. There's nothing hard sell involved, I can assure you. Rather, the idea is to share my thoughts with you about how I believe buyers can be better served by the real estate industry. Thank you. |
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