In the beginning, real estate brokers were known as middlemen and optioneers. Back then, the customary practice was for a middleman to know about a property for sale, but to keep it secret from other middlemen. It was difficult for these middleman to collect a fee for their services so they would resort to tactics that were not always in their seller’s best interest. Optioneers, on the other hand, were usually more successful in collecting their fees because they would tie up the seller’s property on an option to purchase, sell the property to a buyer at a price over the option amount, pay the seller the option price, and then pocket the rest.
The early real estate brokerage business was loosely organized and used methods of brokering that were often dishonest, subject to fraud, and that took advantage of sellers and buyers. Eventually, a newer concept with the real estate broker being an agent of and owing a fiduciary duty to the seller and receiving payment for his services was developed. This new concept forced the seller and broker relationship to a higher level of service and duty. It also allowed brokers to list property for sale using contracts. These contracts are what we now refer to listings. The earlier forms of listings we called open listings. The open listing is a type of non exclusive listing contract authorizing a real estate broker to offer a property for sale, find a buyer and get paid for services upon the closing of that transaction.
Other brokers could also have open listings for the same property, but only the broker who actually found the buyer would receive a commission. In addition, no broker would get paid a fee if the seller sold the property. The open listing discouraged cooperation between brokers, since each broker could obtain their own open listing. To solve the open listing problem, the exclusive agency listing became popular.
The exclusive agency listing is a type of listing contract wherein the seller offers only the listing brokerage compensation if the buyer is procured through the brokerage’s efforts or the efforts of other real estate brokerages. This means that in certain situations, such as For Sale by Owner, the listing brokerage may not receive compensation when the property is sold. In the exclusive agency listing, the listing brokerage or another brokerage working with the listing brokerage must procure the buyer in order to have a claim on compensation.
The exclusive agency listing encourages competing brokers to find buyers for listing, since the listing brokerage pays the selling brokerage’s fee. However, the seller still does not pay a fee when a seller finds the buyer. The exclusive agency listing eventually gave rise to the exclusive right to sell listing.
The exclusive right-to-sell agreement, the listing brokerage is offered compensation in the event of a sale regardless of who procured the buyer. The exclusive right to sell listing guarantees that the listing broker will get paid a fee, even if a competing broker or the seller sells property. It provides the most protection for the listing broker and is considered in the best interest of the seller because the listing brokerage will put effort and resources into marketing the property, since a commission is guaranteed during the term of the agreement.
Even after the exclusive right to sell listing became popular, there was little cooperation between brokerages, since a buyer who wanted to buy a specific property would have to deal with the broker who had exclusive listings of interest. It was also quite clear to all parties in that the broker represented the seller and that the buyer had no representation.
By the 1950s there was pressure for more cooperation between brokerages. As a result, a broker working with a buyer would contact competing brokerages to to learn of their inventory and possible matches for their clients. Deals often resulted where the selling agent did not know the seller or their agent and the selling agent’s only dealings were with the buyer. Suddenly, the concept that the selling brokerage owed its fiduciary duty to only the seller was no longer a neat and logical concept. However, it would take many years before the unworkable agency concepts would be sorted out and lead to buyer representation.
As the 1950s and 1960s progressed, a more formalized cooperative brokerage system, known as the Multiple Listing Service (MLS), was developed. Through the MLS, the concept of subagency evolved. Simply stated, this meant the listing broker was the agent of and represented only the seller. The listing brokerage would hire sales associates who were considered subagents of the seller. The listing MLS brokerage was required to make the listing available to all cooperating brokerage within their MLS. These cooperating brokerages were also deemed subagents of the listing brokerage, who were agents of the seller. If the cooperating brokerage had sales associates, they were subagents of the cooperating brokerage, who were subagents of the listing brokerage, who was the agent of the seller. During this period, an agency relationship with a buyer was not possible, since the agency relationship was always with the seller. The only duty a licensee owed to a buyer was to not lie when asked questions about a property. The concept of “buyer beware” was truly the reality of how the brokerage business operated and buyers were always unrepresented.
The rise of consumerism, as manifested in numerous court decisions, put pressure on the brokerage business to be more concerned with the interests of the buyer. Because of that, licensees working with buyers had an affirmative duty to disclose known matters affecting a property. For example, if the broker knew that a roof leaked, he would have to disclose this fact. This disclosure concept was later expanded by the courts to include conditions about the property that the brokers should or could have known.
By the 1980s, a government study found that nearly three-quarters of all buyers thought the brokerage they were working with was representing them as a client. The same study concluded that nearly three-quarters of all sellers also thought that the cooperating brokerage represented the buyer’s interests. It soon became obvious the concepts of agency law that the industry and governmental regulators had attempted to impose in order to simplify and clarify the agency relationships had not worked. Continued pressure from consumer groups and the courts finally led to the buyer representation movement of the 1990s.
In 1991, the National Association of REALTORS® formed an advisory group to study agency representation issues. Testimony was received from real estate practitioners, industry experts, the public, and state regulatory authorities. The advisory group’s report made the following recommendations:
- The NAR’s multiple listing policy should be modified to make subagency offers optional. If subagency was not accepted by a cooperating brokerage, then the listing brokerage was to offer compensation to the brokerage representing the buyer.
- The NAR would encourage state associations to promote changes in real estate law and regulations in order to promote disclosure of agency options. These options would include seller agency, buyer agency, and disclosed dual agency. The purpose of this recommendation was to assist consumers in making informed decisions regarding representation.
- The NAR should encourage real estate brokerages to adopt written company policies addressing the handling of agency relationships with its clients and customers.
- The NAR would encourage education of all members on the topic of agency representation. State regulatory agencies would also be encouraged to include agency as a mandatory topic in continuing education requirements for all licensees.
As of 1992, the National Association of REALTORS® adopted the following policy:
“The National Association of REALTORS® recognizes seller agency, buyer agency and disclosed dual agency with informed consent as appropriate forms of consumer representation in real estate transactions. The association respects the need for all REALTORS® to be able to make individual business decisions about their companies’ agency practices. Furthermore, NAR endorses freedom of choice and informed consent for consumers or real estate services when creating agency relationships with real estate licensee.”
These NAR changes to representation policy modified the way the industry practices. Exclusive Right to Represent buyer agreements now allow a buyer to contract with a brokerage to find, and negotiate, the purchase of real property. Generally, these agreements are for a specified period and require the buyer to pay a commission upon the closing of the real property transaction. As an agent of the buyer, the buyer’s brokerage owes all of the fiduciary duties (care, loyalty, disclosure, obedience, and accounting) to his principal, the buyer.