After two weeks operating under the Post-NAR Settlement Rules, the process is starting to feel a little more normal as we continue to navigate the new protocols of communicating our role to buyers, along the way gaining more clarity on the nature of our roles for the parties involved.
After several clumsy exchanges where it felt inappropriate to demand an agency relationship before providing the disclosures on our own listings, it quickly became clear that trying to coerce a buyer to jump into an agency agreement makes no sense to a person when they don’t know us and haven’t had the opportunity to build trust. Not surprisingly, most buyers reaching out were understandably wary of signing even a property-specific representation agreement, even though it’s a non-exclusive contract that can be canceled at any moment by either party.
This rendered us unable to provide a free flow of information about the property our Sellers had hired us to represent, making the process a disservice and a violation of our duty to them. We quickly came to the conclusion that first and foremost we need to be able to freely discuss the property and share details…and to worry about whether the buyer wants to work with us later.
Fortunately, agents are able to perform ministerial acts without an agency relationship so long as the nature of the existing relationship is properly documented in a written agreement. And a written agreement doesn’t necessarily mean a written agency agreement. Typically, ministerial acts are acts performed by a brokerage that are purely informative or clerical and do not involve providing brokerage services or active representation.
This distinction helped resolve the issue, and we have started using the Buyer Non-Agency Agreement for people who just want more information about our listings, providing a softer handed approach which is more in line with how we like to conduct ourselves. And of course, once the buyer has had the opportunity to come to their own conclusion on our level of competency and professionalism during our initial interactions and decides they would like our advice we can enter into an agency relationship with both sides that much better informed.
The Non-Agency Relationship form also specifies that we need to confirm the agency relationship described “or as modified, in writing, prior to or at the same time as Seller’s execution of purchase agreement”, so whether on our own listing or any other agency’s listings, we can formalize the perimeters of the agency relationship at that point. And by using property-specific forms along the way, agent and client alike are able to get a better feel for each other before jumping into a full-blown buyer broker relationship.
Perhaps best of all, a non-exclusive Buyer Broker Agreement can be modified as many times as needed prior to writing up an offer, so as the relationship evolves, the agent and client can further refine their understanding and expectations of each other along the way, which ultimately makes for a more solid relationship all around.
Comments