Selling a Home on the North Fork of Long Island

September 10th, 2008 category: Sellers

To home sellers on the North Fork of Long Island: Agency Choices Matter!

You’ve decided to sell your home; you’ve located the perfect listing company. Pricing is established. A question remains: WHO TO COOPERATE WITH? When your agent opens up exposure by utilizing the MLSLI on your behalf, you have choices to make.

When you list your home, the agency that you “hire” will likely be signing up to be a “sellers agent.” The primary function of your listing company is to offer a transaction that covers you, the seller, in a required fiduciary capacity. You will agree to a fee for this service.

You will be making a decision  with whom to cooperate, or split the fee that you are paying to the listing company. As most properties are now in the mlsli, a “co-broke” is likely. This simply means that of the total amount that you are being charged by the listing company, a percentage (generally one half) will go the the agent that brings the buyer.

You have choices.
1. You can permit agents to view, bring buyers, and make offers on your home as your “employee.” The result of this arrangement is that while the cooperating broker has loyalty to you (seller), YOU can be held vicariously liable for anything misrepresented to the buyer by the cooperating real estate salesperson. For this reason, “sub agency” offers a gamble for you, the seller. This is shown as “seller agency” on your disclosure.

2. You can permit agents to view, bring buyers, and make offers on your home under a second agreement: broker agency. Under broker agency, the listing broker  could be held liable for the misrepresentations by the cooperating broker, to the buyer. For the same reason that sub agency is a poor choice for you, so it is for your listing company under “broker agency.”  It isn’t possible to be present for every dialogue between a real estate salesperson and their buyer. For this reason, this agency is a less preferred method of cooperation.

3. You can permit agents to view, bring buyers, and make offers on your home under a third agreement: buyer agency. Under buyer agency, neither the seller, nor the listing company is held liable for the actions of the cooperating salesperson to the buyer. While normal disclosure and ethics, as well as legal ramifications remain, you are NOT responsible for any misinformation (intentional or not) from the cooperating salesperson to the buyer, when unbeknownst to you or your listing company.

Fairness is owed the buyer from the listing company, assuring that disclosures are properly handled, and that integrity is present. That’s why you chose your listing agent- fiduciary to you; fairness to the party entering into an agreement to purchase your home.

A large majority of real estate salespeople representing buyers will do a perfectly seamless job.

In the event, however, that YOUR buyer is unfortunate enough to be misinformed by THEIR agent, let liability fall where it should: to the buyers agent.

The last thing that you, as a seller, need  is an issue after closing that is outside of your control, and perpetuated by the party receiving payment from you, that ends up in YOUR lap, or that of your listing broker. Cooperating with a buyers agent is money well spent, relative to the other two options available, if it avoids a liability issue later on. Your fee provides an absence of vicarious liability for you, as a seller, in this agency. Additionally, by the nature of the diligence required, you better the odds of your cooperating salesperson providing accurate information to your buyer.

Yet another discussion that you may well have with your listing agent (and we suggest that you do) is dual agency. This scenario occurs when the listing company procures a buyer for your property. Some companies still utilize this method; many avoid this choice due to inherent conflicts of interest. If the company that you choose does not participate in the multi list service, the odds are greater that you’ll encounter this type of agency. As the NYS disclosure indicates, consider this agency carefully before engaging.

For a copy of the New York Department of State disclosure form, click here.
**AS IS REQUIRED IN THE STATE OF NEW YORK, IN MATTERS OF LEGALESE, CHECKING WITH YOUR LAWYER TO CONFIRM THE SUGGESTION ABOVE IS ENCOURAGED. THIS IS NOT TO BE CONSTRUED AS LEGAL ADVICE.

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This entry was posted on Wednesday, September 10th, 2008 at 9:35 pm and is filed under Sellers. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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