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CFA: Disclosure Laws Fall Short

The Housing Scene by by Lew Sichelman
by Lew Sichelman
The Housing Scene | January 24th, 2020

The nonprofit Consumer Federation of America has once again come down hard on real estate disclosure laws. This time, the group is calling on states to rewrite disclosure laws so they are more understandable, and to give them to buyers and sellers upon their first contact with realty agents.

In its latest report, the CFA says many buyers do not comprehend the written disclosure statements they receive from their agents -- if they receive one at all, or bother to read it.

For one thing, said CFA Senior Fellow (and former executive director) Stephen Brobeck, not knowing whether the agent represents your interests or those of the seller can be costly, because he or she could pass on information you disclosed that would diminish your bargaining power. And for another, an agent, in the interest of making a quick sale, may not show you houses that may be better choices.

“An agent working for the other party could, and may be legally required to, pass on compromising information such as the purchase price you’re prepared to sell for or spend,” he said. “And this agent would have no obligation to find the right buyer or the right house at the right price.”

This isn’t the first time Brobeck and the CFA have taken on the real estate sector. Back in the 1990s, they challenged the use of subagency, in which all other agents were the subagent of the listing agent. That meant that the agent who drove prospects around from house to house was legally bound to pass along information that was disclosed to him, sometimes without telling the buyer.

The use of subagency was subsequently abandoned, and every state set about writing its own disclosure laws. Some were written by lawyers, some by real estate professionals, but rarely did any include consumer input, said Brobeck.

Nowadays, disclosures are required in all 50 states. But many forms are so long, so full of legalese and so poorly presented that consumers will not read them. Beyond that, terminology differs wildly: The CFA found that, collectively, states use more than 50 different terms to identify the roles agents can play in a transaction.

For example, a dual agent -- one who works for both the buyer and the seller, but has no fiduciary duty to either -- might be known as a “limited consensual dual agent,” “dual representative,” “limited dual agent without assigned agency,” “standard dual representative,” “standard dual agent,” “dual-agency broker representing seller and buyer,” “broker representing both seller and buyer” or “multiple representative.” It all depends where the agent practices the always-questionable art of working both sides of the fence.

“Very rarely do two states have the same agent roles and the same terms to identify those roles,” reads the CFA’s 27-page report says, calling the mishmash of terms “especially challenging.”

Brobeck singled out Washington’s disclosure form/pamphlet as the least consumer-friendly. But he added that many other states’ disclosures are so long, legal, poorly formatted and in such small type that they are unlikely to be read. On the flip side, he credited Vermont, New Hampshire and South Dakota with doing “a good job” with their disclosure laws.

Stressing that “no state is perfect,” the nonprofit advises them all to go back to the drawing board. Otherwise, consumers are left to rely on the guidance of agents who don’t owe them any allegiance.

According to the report, 14 states fail to clearly identify whom the agent represents. In eight of those, the disclosure forms were written by the state; the other six use industry-written forms.

The timing of agency disclosures also leaves much to be desired. Now that many buyers are combing the internet and calling listing agents directly when they see a house they like, timing has become more relevant than ever, Brobeck said during a telephone press conference. “Many people don’t fully understand that the agent (they speak with initially) may not represent them.”

Yet, only 16 states require agents to reveal whom they represent upon first contact. Several others mandate disclosure upon the first meeting, which isn’t soon enough to satisfy Brobeck. Some states allow agents to wait until a service agreement of some kind is signed, and eight allow them to hold off until just before a contract is inked -- which, as the report says, is “much too late in the process.”

With the amount of money involved in today’s typical real estate transaction, Brobeck says both buyers and sellers “really need an agent who represents their interests and their interests alone.”

Toward that end, the CFA is urging every state to rethink its disclosure laws and require they be in writing; in short, concise language; in a user-friendly format; and written by the state, not the industry. Furthermore, the disclosure should include the agent’s name, contact information and date.

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How To Dump an Unresponsive Agent

The Housing Scene by by Lew Sichelman
by Lew Sichelman
The Housing Scene | January 17th, 2020

Every once in a while, a buyer or seller becomes totally dissatisfied with his or her real estate agent.

In a single recent week, Alan May of Jameson Sotheby’s International Realty in Evanston, Illinois, received two calls from sellers who were disappointed with the lack of service from their listing agents. After a brief conversation with each, in which May outlined what he would do differently, they both decided they would like to fire their agents and hire him instead.

Beyond griping that their homes haven’t sold, unhappy owners complain largely about a lack of communication from their agents, according to most of the realty pros who recently discussed the topic on industry website ActiveRain.

That’s what May’s two callers were beefing about. One “complained that he would call his listing agent and would not get a return call for two or three days,” he said.

That, alone, is grounds for dismissal, responded Richard Iarossi of Coldwell Banker in Crofton, Maryland. “Two days is absurdly long by any standard,” he said.

Candice Donofrio of Next Wave Real Estate Investments in Bullhead City, Arizona, agreed: “I’ve said it a hundred times -- this is not a sales business, it’s a communications business.”

So if you’re not satisfied, how exactly can you dump your real estate agent midstream? Turns out, there’s a proper way to accomplish this.

First off, you are bound by what’s in your listing agreement, including items such as the length of the contract, how the agent plans to market your house and under what conditions you can terminate the deal. That’s why you should always read what you’re signing and balk at things you don’t like.

“Don’t take these terms for granted,” Katie Johnson, general counsel for the 1.3 million-member National Association of Realtors, advised in an interview. “Discuss them with the agent and articulate what both parties agree to.”

For example, some contracts last a year, but in that time, the market could completely turn. If you try to minimize your risk by pushing for a shorter contract, though, the agent and broker won’t be willing to spend as much to market your house.

If you’ve given the agent a decent amount of time and he has not performed up to your expectations, you might think about ending the agreement prematurely. If your listing expires in a relatively short time -- or if you just don’t like confrontation -- then sit tight and allow your contract to run its course.

If there are still several months to go, though, tell your agent you want to part ways. Do it nicely -- no yelling or obscenities -- and put your reasons down on paper so there’s a record. Consider hand-delivering it.

This is a courtesy step, because it’s not your agent who owns your listing; it’s his or her broker, the person whose name is on the door. The broker can, if they so choose, overrule the agent and agree to break the contract. Under some listing contracts, though, you may be required to reimburse the agent and broker for whatever marketing expenses they have incurred for your property.

Under the standard contract in Florida, sellers must sign a withdrawal agreement, pay back what’s been spent on their behalf AND pay a cancellation fee. The amount of that fee is left blank, to be filled in when the listing agreement is signed, so it can be any amount -- or nothing at all. Another reason to read carefully and negotiate before signing.

The broker can waive all this. But in Florida, at least, brokers can play hardball because the agreement also states that if the house is sold between the time the pact is terminated and the time it would have expired on its own, the seller must pay the agreed-upon sales commission -- less the cancellation fee, of course.

Brokers might try to hand you over to another agent in their shop, or cut you loose altogether. But they can also refuse to release you from your contract. And if that’s the case, you’ll just have to gut it out. Maybe.

If you believe the agent acted unethically, and he or she’s a member of the local Realtors’ association, you can take your complaint to that board, which can sanction the agent if it agrees with you. Admittedly, though, this can be a slow process.

While you are going through all this, start looking for another agent: one with far better communication skills. That way, as soon as you are able, you can sign with them and lose little time on the market.

Agents aren’t allowed to initiate contact with buyers or sellers who are under contract with another agent. But if you call them, they can make full-blown presentations, if that’s what you want.

Some agents won’t talk to anyone who is currently listed with a rival. Kimo Jarrett of WikiWiki Realty in Huntington Beach, California, is one. “I make it a policy not to discuss any business issues with anyone under contract with another agent, regardless of the circumstances,” he said.

May, and others, respect that position. But as May pointed out, “The rules say that as long as I didn’t initiate the contact, and they contacted me, we are allowed to talk.”

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The Listing Site You’ve Never Heard of

The Housing Scene by by Lew Sichelman
by Lew Sichelman
The Housing Scene | January 10th, 2020

When Marilyn Wilson’s mother moved to California not too long ago, Wilson was tasked with selling her mom’s house in Buffalo, New York. She dutifully listed the house and waited for buyers to come calling.

A few days later, Wilson, a real estate consultant and managing partner of the WAV Group, went to Zillow.com to check on her listing. What she found was disconcerting.

She saw four agents mentioned as the listing agent, with her name at the bottom of the list. She called the other three, but none knew anything about the house. “All of them were from the other side of town,” she recalls. “One was 45 miles away.”

Welcome to what some call the “pay-to-play” world of Zillow, which charges agents a premium to be named on listings that are not their own. Zillow calls it the “premier broker” program, by which agents pay a fee to secure leads from people inquiring about houses in certain ZIP codes.

According to the company website, when a shopper makes an inquiry through Zillow (or the Zillow-owned site Trulia), the company confirms that the prospect is ready to speak with an agent. If so, it hands the would-be client off to the “premier” agent -- as opposed to the listing agent, who, ostensibly, anyway, knows more about the property than anyone else, save for its owner.

If the premier agent can’t arrange a showing for the home, or if the buyer doesn’t like it, the agent can take them to other houses on the market -- probably his or her own listings first. Now, the listing agent has lost a potential sale, as well as a potential new client.

On its site, Zillow claims premier agents close twice as many sales. And Matt Hendricks, director of broker relations, says it has been not only “an incredible lead generator” for the “tens of thousands” of agents who participate, but also a top revenue producer for the company.

Hendricks maintains that listing agents always pop up in the top spot, no matter how many premier agents are also listed. But the premier agents tend to have a more robust online resume than listing agents, he admits, which is likely to make them more attractive.

House shoppers are free to contact any agents associated with the listing, but consultant Wilson doesn’t like the concept. And neither do most agents who work hard to secure listings and jealously guard them.

“It can be a crapshoot,” said agent Myrl Jeffcoat of GreatWest Realty in Sacramento, California. “More than once, I have heard from buyers who thought they were contacting the listing agent ... but (actually) called someone else.”

“When buyers click on a listing, they have no idea they are not going to get the listing agent,” agreed Kat Palmiotti of Grand Lux Realty in Monroe, New York. “Sometimes they get contacted by 10 different agents. It can be frustrating to a buyer.”

Wilson called Zillow’s program “very annoying.”

Premier agents are “fishing for new clients,” she said. “They’re trying to buy leads, and they’re using someone else’s listings as bait. There’s no way they can represent the best interests of the seller, or the buyer, for that matter.

“They call back quickly, I’ll give them that. But they do not represent the house. Some have never been inside. Some are not even in that market.”

Wilson and some other angry agents have implored Zillow to remove non-listing agents’ names from listings, but she says the Seattle-based company refused. Zillow’s Hendricks says listing agents used to be able to pay to be the only agent whose name is on the “home details” page, but that feature was dropped a few years ago.

Even sellers have been unable to stop the practice. Hendricks says that since sellers want the most exposure possible, most don’t want their agents to be the only ones listed.

So three years ago, a coalition of 65 of the largest full-service realty firms and multiple listing services in the country came together to wrest control of their bread-and-butter listings from Zillow and other third-party business disruptors -- sometimes known as aggregators -- by creating a public portal as an alternative.

You may never have heard of Homesnap, but it is now the No. 1-rated agent mobile app and desktop site, with traffic up 40 percent in the last year. “The industry-controlled portal has become our industry’s greatest ‘overnight’ success story,” says Wilson, who now advises the portal, but whose experience in Buffalo occurred long before she signed on.

Among other things, Homesnap’s technology allows you to take a photo with your mobile device of any house and instantly be shown all its pertinent details: size, number of bedrooms and baths, property taxes, school district, asking price (if it’s for sale) and even its estimated value (if it’s not).

The idea is to give buyers and sellers a better online search experience than the one provided by companies such as Zillow, where agents spend beaucoup bucks promoting their listings.

Better yet, participants adhere to a set of Fair Display Guidelines, which call for search results to be sorted and ranked by the consumer’s search parameters, as opposed to any type of “featured” listing or paid placement. Only the names and contact information of the actual listing broker and agent can be displayed on the “property details” page. No inquiries by potential buyers will be diverted elsewhere.

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