The Way Real Estate Agents Are Compensated Confuses Many Buyers & Sellers

The real estate industry is unlike any other industry in the way its sales personnel are compensated. Since it is a persistent source of confusion for the general public, allow me to explain.

Imagine you went to a Ford dealership and described what you need in a car or truck. The salesman goes to his computer and pulls up his own inventory and the inventory of all the other dealers in the metro area.

It turns out that Chevrolet or Toyota might have a vehicle that better fits your needs, and the salesman knows that he’ll earn just as much by taking you to their lots and selling you one of their vehicles, so you get in his Tesla and go car-hunting. He even takes you for test drives without a salesman from the other dealership being involved at all. You go back to the Ford dealership, where a purchase offer is signed and emailed to the dealership which has that vehicle. The salesman helps you arrange financing with a trusted lender and sends proof of cash or financing with the offer.

Although there are some “auto brokers” who function as I’ve described above (in fact, I bought my Chevy Volt using an auto broker), that’s not how most car sales transactions work. It is, however, exactly how real estate works.

You’ve probably heard of the Multi-List Service (MLS) on which real estate listings are posted. The central premise of the MLS is “cooperation and compensation.”  To be a member of the MLS — essential if you’re in the real estate business — you must agree to cooperate with every other member of the MLS and to offer compensation if another member sells your listing. The percentage commission offered to other members is called the  “co-op” commission. In the Denver market, that commission is typically 2.8%. There’s an interesting history of MLS-type “exchanges” dating back as far as the 1880’s, which you can read at www.NAR.realtor.

The listing contract which every agent prepares for a seller specifies the total commission (typically between 5 and 6 percent) and the co-op which the listing agent is offering to other MLS members. In the “old days,” before Taft-Hartley anti-trust laws were enforced in our industry, the Denver Board of Realtors prescribed a 7% listing commission, and prescribed that 40% of that commission (or 2.8%) be offered to other agents as a co-op.  Under that formula, sellers would pay 4.2% commission to the listing agent and 2.8% to the selling agent at closing.

Once the Department of Justice said that anti-trust laws apply to the real estate industry, the Board of Realtors and the MLS could no longer dictate commission rates, and listing rates began their inevitable decline as agents competed with each other for listings. This is a good thing for sellers, but it has no real meaning for buyers. Indeed, when listing agents have tried to pay less than 2.8% co-op commission, they have found that buyers’ agents are less likely to show and sell their listings. As a result, listing agents now earn less than buyers’ agents in a given transaction, even though they are the ones laying out money for photographs, brochures, staging consultations, advertising and other expenses associated with maximizing their listings’ exposure to potential buyers.

Now and then, this commission model — wherein the entire commission is paid by the seller — is challenged, but it endures almost universally, if for no other reason than “it works.”

Where this business model causes confusion is when a broker or brokerage advertises a 1% or 2% “listing fee” in order to get a listing appointment, at which time the seller learns that this does not include the requisite (or at least recommended) 2.8% commission to the buyer’s agent.. These brokers and brokerages know that honestly advertising a 3.8% or 4.8% listing fee would garner them far fewer listing appointments.

Another source of confusion is what’s known as the variable commission. This term applies to a commission that is reduced if the listing agent doesn’t have to pay a co-op commission because the buyer has no agent of his own. However, most listing agents — 85% by my calculation — don’t mention reducing their commission in their listing presentations and hope that the seller won’t ask them about reducing their commission if they don’t have to pay a co-op commission. At Golden Real Estate, it is office policy to offer a variable commission.

As real estate values continue to increase, it’s reasonable to ask whether the commission rates — which I’ve said are typically between 5 and 6 percent) should be reduced on the theory that it takes little more money and effort to market a million-dollar home than it does to market a $400,000 or $500,000 home.

The extent to which listing agents can reduce their commission, however, is limited by that 2.8% co-op commission that we feel obligated to offer. After all, if we reduced our commission to, say, 4%, we’d only earn 1.2% after giving away 2.8% to the buyer’s agent.

Where we can be more accommodating on those higher priced homes is in agreeing to a lower variable commission. My practice is to reduce my 5.6% commission to 4.6% when I don’t have to pay 2.8% to a buyer’s agent, but I’m willing to adjust both those numbers on a higher-priced listing.  By the way, that appears to be the practice of most broker associates at Golden Real Estate.  Because of Taft-Hartley, I can’t dictate what they offer.

About 5% of transactions are double-ended, although that percentage is much higher at Golden Real Estate because of our more extensive marketing of listings and the fact that we offer Totally Free Moving to Colorado buyers when they are unrepresented.

When Is Your Real Estate Agent a ‘Transaction Broker’ and Not an ‘Agent’?

Although it’s common (including by me) to talk about real estate professionals as “agents,” the proper term is “brokers,” because the term “agent,” at least here in Colorado, has a specific legal meaning which is important to understand.

One reason most of us call each other “agents” instead of “brokers” is that here in Colorado the term “broker” is commonly used when referring to the employing broker or managing broker in a real estate company.  For example, I’m the “broker” at Golden Real Estate, and my agents are “broker associates.” It’s just simpler (and more common) to call them “agents.”

So what is an “agent” in the legal sense? An agent is an advocate for his or her client, serving with “the utmost good faith, loyalty and fidelity.” An agent will share with his client anything that helps in negotiating the best deal in a transaction. For example, if a broker were to reveal that his buyer is desperate to buy a home or that his seller is desperate to sell his home, an “agent” on the other side of the transaction could (and should) use that information to his client’s advantage. A good “agent” would never let that kind of information slip!

A “transaction broker,” on the other hand, has no such responsibility to his or her client and functions only to facilitate a transaction. Indeed, he is barred from disclosing to one party anything about the other party that would favor that party in negotiating a transaction.

At Golden Real Estate, as at most brokerages, it is our office policy to always function as “agents” for our buyers and sellers. The only exception is when we find ourselves on both sides of a transaction because one of our pre-existing buyer clients (for whom we’re an agent) wants to buy a property from one of our sellers (for whom we’re also an agent). Then we’re obligated to serve as a transaction broker and advise each party that we’re now a neutral facilitator of the transaction and can no longer coach either party regarding price or any other transaction issue.

So what happens when an unrepresented buyer approaches a listing agent about buying his or her listing for which he is functioning as an “agent”? The agent could choose to have the buyer sign an agency agreement, but that would require him to sacrifice his “agent” relationship with the seller and become a transaction broker.  It is Golden Real Estate’s policy always to treat an unrepresented buyer of our listings as a “customer,” thereby retaining our “agent” relationship with the seller.

Did I confuse you more? I hope not! Hopefully the broker you employ knows the rules of agency relationship, as we certainly do.

Video Recording of Sustainability Series Session #3 About Solar Power Is Now Available to View

Recorded by Martin Voelker of the Colorado Renewable Energy Society on March 21st at the office of Golden Real Estate.

Off-Market Transactions Hurt Sellers By Shutting Out Buyers Who Might Pay More

The sale of homes without listing them on the MLS frustrates would-be buyers who are waiting for just such a home. Those frustrated buyers might have paid more than the actual buyer, in which case it’s fair to say that both buyers and sellers have been harmed.

This is an update of a column with the same headline published exactly a year ago. On March 22, 2018, I wrote that in January and February of that year 4.4% of the sold listings were only entered on the MLS after closing. It’s even worse this January and February, when the percentage of Denver sales showing zero days on market rose to 6.3%. Another 2% sold in one day, which is still not enough time to expose a listing to all potential buyers.

I have determined that with proper exposure, 4 days is the “sweet spot” for listing a home and getting the highest possible price for it. That is office policy at Golden Real Estate, violated only when the seller insists on selling sooner for one reason or another, such as to a friend.

Analyzing the 101 Denver sales in January and February, the median sale was for full price, which makes sense. However, half the 86 Denver homes which sold after 4 days on the market garnered from 1% to as much as 10% above their listing price. That can amount to a lot of money “left on the table” by sellers who chose (or were convinced by their agent) to sell without exposing the home to more buyers via the MLS..  

It’s reasonable to ask how listing agents may have profited (at their seller’s expense) from keeping listings off the MLS. An analysis of the Denver listings that were entered as sold with zero days on market this January and February reveals that 20.8% of them were double-ended, meaning that the listing agent kept the entire commission instead of sharing it with a buyer’s agent. Not one of the homes that sold after 4 days on the MLS was double-ended. It seems obvious to me that many listing agents are convincing their clients to sell without putting their home on the MLS so they can increase the chance of doubling their commission. Putting their self-interest ahead of their clients’ is a serious violation of both ethics and law.

This is not to say that zero days on the market is never in the best interests of the seller. For example, the seller and buyer might know one another, or otherwise found each other, and simply asked an agent to handle the transaction without seeking other buyers.  Or perhaps it was a for-sale-by-owner property where an agent brought the buyer and entered the sale on the MLS after closing as a courtesy to other agents and to appraisers. Or a seller might ask to keep the home off the MLS because he/she does not like the idea of opening their home to lots of strangers.

One would hope, however (and sellers should expect), that when a broker double-ends a transaction, he or she would at least give the seller a break on the commission, rather than keeping the portion (typically 2.8%) that would have been paid to a buyer’s agent. This practice is referred to as a “variable commission” and is office policy at Golden Real Estate. Unfortunately, however, only two of the 21 listings that was double-ended and sold without being put on the MLS offered their sellers this discount. The other 19 enjoyed the windfall of keeping the full commission to themselves, without sharing that windfall with their sellers.

Some agents put listings on Zillow as “coming soon” while holding them off the MLS as a technique for attracting a buyer before other agents know about the listing. The Real Estate Commission addressed this practice in a 2014 position statement, stating that “if the property is being marketed as ‘coming soon’ in an effort for the listing broker to acquire a buyer and ‘double end’ the transaction, this would be a violation of the license law because the broker is not exercising reasonable skill and care.”  Further, the commission stated, “a broker who places the importance of his commission above his duties, responsibilities or obligations to the consumer who has engaged him is practicing business in a manner that endangers the interest of the public.” 

Sadly, that is still happening.

Electric Vehicle Event on April 20th at Golden Real Estate

Golden Real Estate is celebrating Earth Day by holding an electric vehicle round-up on Saturday, April 20th, from 10 am to 3 pm in our South Golden Road parking lot.

It’s a national event, called “Drive Electric Earth Day,” organized by Drive Electric Week, which is held every September. As with that event, we’re inviting owners of electric cars, trucks and motorcycles to show their vehicles and maybe offer rides. You can register online at www.DriveElectricWeek.info as either an EV owner or attendee

As an extra added attraction, I have invited Best Electric Bikes USA (who sold me my electric bicycle a few years ago) to set up shop and bring some electric bikes for test rides. Research has shown that owners of electric bikes ride more often and therefore get more exercise than owners of non-electric bikes. It’s true for me!

Affordable 2-BR Lakewood Condo Just Listed by Andrew Lesko

Check out this sunny garden level condo at 381 S. Ames Street, Unit B-105, just one mile east of the Belmar shopping district with easy access to downtown Denver. It was just listed this week for only $198,000. This recently updated condo comes with stacked washer/dryer, newer cabinets, granite countertops, and top of the line berber carpeting & ceramic tile floors. It’s affordable Lakewood living for the first-time or downsizing home buyer. This end unit comes with 2 reserved parking spaces and low HOA dues ($157/month) which include heat & hot water, a clubhouse and swimming pool! At this time, this is the only 2-BR, 2-bath condo under $200,000 in Lakewood. Find interior photos at www.LakewoodCondo.info. Andrew will hold it open Saturday, 11am – 3pm. Click on the narrated video tour below.

How Do You Know the Real Estate Agent You’re Interviewing Is Telling You the Truth?

This is a difficult topic, but it’s one that deserves discussion. As I’ve pointed out before, there are so many licensed real estate agents that fewer than half of them earn a living solely from brokering real estate transactions. (FYI, all ten Golden Real Estate agents are full-time, earning enough from their real estate careers not to require a second job.)

That means that the agent you are interviewing may feel lucky to have two or more transactions per year, and capturing you as a seller or buyer could be super important to him. This could cause him (or her) to exaggerate their level of success as well as their experience and market knowledge.

I can safely recommend every Golden Real Estate broker associate, not only because they are full-time and successful, but because they adhere to the Realtor Code of Ethics. I have let go previous associates when I observed or learned about ethical lapses. Unfortunately, all of us can recount times when we have observed ethical lapses by agents on the other side of a transaction.

The Pareto principle applies to real estate agents as it does to other occupations, with 20% of us doing 80% of the transactions.  And since the average real estate agent has only four closings per year, the median number of closings is probably closer to two. In other words, half of the licensed agents have two or fewer closings per year. That does not translate into a living wage.

In researching this topic, I googled the phrase “what does the average Realtor make,” and I urge you to do it, too — especially if you are considering real estate as a career.  It’s very discouraging.

A posting on www.TheStreet.com, for example, includes the following: “If you think you can just devote a few hours a week and make a nice income as a real estate agent, you are badly deluded. A national survey of agents and brokers who belong to the National Association of Realtors finds that agents who put in 60 hours or more a week have median earnings of $100,000 a year. By contrast, for those who put in less than 20 hours a week, the median is $8,930 a year.

    At Golden Real Estate we had about 100 transactions in both 2017 and 2018, or an average of 10 transactions per agent. We don’t need to mislead a buyer or seller regarding our level of experience and success. Also, we have weekly office meetings where we discuss all aspects of the business, often with guest speakers. We take the annual commission update class and the biennial Realtor Ethics class together in our office, so we’re all on the same page.

REcolorado.com, the Denver MLS, makes it easy to verify the level of experience of its members, and I have made it even easier by creating a shortcut URL, www.FindDenverRealtors.com, enabling you to search for an agent by name and not only see active and under contract listings but also their sold listings going back several years. Then you could click on a listing to see the quality and thoroughness of it.  That’s the best indicator of how well they’ll serve you.

One common mistruth told by agents is, “I have a buyer for your house.” All too often it’s a ruse to get your listing, after which they tell you that the buyer found another house, “but we’ll find you another buyer after it’s on the MLS.”

Another lie is “Our listing fee is 1%.” If you pause the end of that commercial (as I did), you’ll read that it doesn’t include the commission owed to a buyer’s agent (2.8% in our market), and if a buyer has no agent, the 1% fee is increased to 2%. Below is that freeze frame. The “fine print” is so small that I have transcribed it below the picture:

“Minimum commissions apply. 1% listing fee not available in all locations. Commission is subject to change. Buyer’s agent commission not included. For example, if the buyer’s agent commission is 2.5%, seller will pay a total commission of 3.5%. Listing commission increased by 1% of sales price if buyer is unrepresented.”