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What are people's current thoughts about exclusive BAA's. We have sold our house and are relocating ourselves to NC. Our listing agent here has referred us to agents (we are deciding between 2 different cities) both within the same big name brokage as she is. In doing as much before hand as possible before the move so we can hit the ground running we have been sent sample copies of the documents that we would sign as buyers. Among them is a BAA. We have never seen one before and I'm a bit uncomfortable with it. I certainly agree an agent should be paid for their efforts that lead to a completed sale but that was never an issue that required contracts on the buyer side before why does it now?
There is a legal requirement in NC for an agency agreement contract to be in place for a licensee to represent a buyer.
IF you find someone who will write an offer for you while telling you they are YOUR agent, and you have no agency agreement in place, beware. You are dealing with an outlaw, or an idiot, or both.
When using the Buyers Agency Agreement, NEVER sign one unless you have right of termination written into it. In Section 13, Additional Provisions, I always include, "Either Party may terminate this agreement at any time prior to location of a suitable property." Don't settle for less. Don't hesitate to sign one for a year, rather than a short one with no right of termination. http://www.ncrealtors.org/uploads/sample-201.pdf
You might also include a requirement that the agent clarify your potential liability for commission shortfall prior to showing you a home, and decline to see homes where the agent is shaky about being paid.
Depending on the cities you are contemplating, it may not be an issue. The Triangle MLS rules and organization pretty much assures that brokers are paid like a machine from listing agents.
You may find a FSBO who will not pay a buyers agent, but even most of those do.
Just get clarity up front, before viewing if possible, but definitely before writing an offer.
No Surprises! is the rule.
Mike, how does a Buyer get out of an Exclusive if there is no special stipulation written into the agreement. How very interesting how states vary.
I wouldn't write the stipulation if I thought there was another similar avenue in the agreement. It is not a redundant clause.
Technically, a party would have to prove breach, and who wants to go down that avenue, consumer or agent? Neither, I hope.
It IS a legally binding agreement, and I present it as such, and discuss the two items most worrisome to consumers, payment and how to get out of it.
No one in their right mind wants to work with someone when the relationship is nonproductive or sour, and that includes agents and consumers. Ergo, "Either Party..."
Thank you both. No I wasn't seeing where I could cancel although there was language giving the broker the right to cancel. We don't have a sec 13 but do have an 11 which is an Additional terms and conditions. Additionally there is all this language which seems to give the broker/agent the right to in fact not act as my exclusive buyer agent but I'm am still their exclusive client ie Dual agency.
Thank you both. No I wasn't seeing where I could cancel although there was language giving the broker the right to cancel. We don't have a sec 13 but do have an 11 which is an Additional terms and conditions. Additionally there is all this language which seems to give the broker/agent the right to in fact not act as my exclusive buyer agent but I'm am still their exclusive client ie Dual agency.
That sounds like it could be an outdated NCAR form, or possibly a proprietary agreement. If it is proprietary, you might want a legal review of the contents.
Since 7/2011, the NCAR Buyers Agency Agreement has included Additional Provisions in Section 13. Prior to that revision, IIRC, it was in Section 11.
If you are looking at the form, look at the bottom right, and see if there is note: Standard Form 201, and a Revised Date.
If it is the current NCAR agreement, it should say, Standard Form 201, Revised 7/2011 and 7/2012.
If it is an older agreement, it should not be used.
Last edited by MikeJaquish; 05-09-2013 at 08:46 AM..
You are probably right about it being a proprietary agreement. In the bottom right-hand corner is a Copyright by the broker/franchisee. The left bottom corner has RE/FORM/Buyer Agreement: 3/8/2012. I was thinking the form made me feel like I ought to get a lawyer to look at it. My previous experiences in Real Estate were before this concept of a buyer's agent came to be popular. We had what I think now is considered a selling agent, we were aware that they worked for the seller, and I expected them to be trying to sell me real estate. I would share only that information that I felt neccessary for them to show me property I would be interested (and qualified) in buying and I expected them to also present comps that would justify a purchase offer price. Does that still exist? Once again given the form shows a place to put in a percentage of purchase price that the buyer agent gets what motatvaition do they have to get me the lowest price? Am I simply nostalgic for olden days and don't remember some major pit falls correctly?
You are probably right about it being a proprietary agreement. In the bottom right-hand corner is a Copyright by the broker/franchisee. The left bottom corner has RE/FORM/Buyer Agreement: 3/8/2012. I was thinking the form made me feel like I ought to get a lawyer to look at it. My previous experiences in Real Estate were before this concept of a buyer's agent came to be popular. We had what I think now is considered a selling agent, we were aware that they worked for the seller, and I expected them to be trying to sell me real estate. I would share only that information that I felt neccessary for them to show me property I would be interested (and qualified) in buying and I expected them to also present comps that would justify a purchase offer price. Does that still exist? Once again given the form shows a place to put in a percentage of purchase price that the buyer agent gets what motatvaition do they have to get me the lowest price? Am I simply nostalgic for olden days and don't remember some major pit falls correctly?
There were so many issues with the old way, that the legislature and the RE Commission made attempt to fix it.
It was quite common for agents to breach their duty to the seller and have a buyer refer to them as "MY agent," when nothing could have been legally farther from the truth.
Now you have a standard agreement that may not be perfect, but clearly spells out the parties' responsibilities, rather than "He said, she said."
The pricing/commission conflict is mentioned in the docs I posted. Sometimes I have to take satisfaction in knowing I have done the best I could for a client, and often that consideration is based on factors that transcend price.
Unfortunately, there is no document that provides trust. That is an intangible between parties. That is a great reason for you to have a solid escape clause in the agreement.
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