Thursday, August 27, 2015

Fortune Attacks Real Estate Brokers – Do You Agree?

Yesterday, Chris Matthews’ article “Real estate agents may be colluding to rip you off” was published by Fortune while citing to a paper published by the National Bureau of Economic Research and authored by Panle Jia Barwick, Parag A. Pathak, and Maisy Wong.

The article claims that “brokers who charge lower commissions are punished in the marketplace” and that sellers are “uniquely incapable to gauge the quality of what they’re buying”.
According to the authors of the cited article, Conflicts of Interest and the Realtor Commission Puzzle,
“[t]hese adverse outcomes reflect decreased willingness of buyers' agents to intermediate low commission properties (steering) rather than heterogeneous seller preferences or reduced effort of listing agents.”
So, in English, it’s not that seller’s agents’ efforts are adversely affected by lower commissions, but instead, that buyer’s agents, who are generally compensated by seller’s agents, are less likely to bring buyers to properties where they are offered a lower percentage for procuring.

As an industry, we need to make sellers capable of gauging the quality of what they’re buying; to make informed decisions as to commission payments.

To accomplish this, brokers need to explain to sellers that they offer a split of their commission to other brokerage companies in the area (i.e., cooperative brokerage) in order to induce such other brokers to act as buyer’s agents and/or broker’s agents in procuring their purchaser to buy the property (i.e., this practice increases demand and consequently the price for real estate).
Seller’s agents need to explain that buyer’s agents and/or broker’s agents are money driven and will steer their buyers to the properties where they are compensated at a higher level (as stated in the study).

Consequently, the amount of the commission that is to be paid to the cooperating brokers must be discussed when a seller’s agent initially takes the listing and such percentage should be included within the brokerage contract (i.e., exclusive right to sell agreement).

In Long Island, the local REALTOR© Board, LIBOR, permits the seller’s agent to control the commission percentage offered to cooperating brokers in each individual deal.
To illustrate, if a seller is paying a broker 6% one cannot deduce that the cooperating broker, who procures, will always get 3% for their efforts. Instead, the cooperating broker will get whatever percentage that is listed on the cooperating brokerage listing (i.e., Stratus) agreement by the seller’s agent (each region in New York has a different cooperating brokerage agreement and therefore this blog’s suggestion does not hold true everywhere).

As a result, sellers need to be educated that they have 5 points of negotiating commissions when hiring their real estate agent, as follows:
  1. The commission percentage to pay the seller’s agent for merely listing the property and negotiating for the seller;
  2. The commission percentage to pay the seller’s agent if such agent individually lists and procures the purchaser (i.e., direct deal);
  3. The commission percentage to pay the seller’s agent if such agent lists, and the commission percentage to pay a colleague within the same brokerage if such colleague procures the buyer  (i.e., in-house deal; this will be one total commission number for both the listing and procuring because the brokerage and not the salespersons is paid the commission);
  4. The commission percentage to pay the cooperating broker where the seller’s agent lists only, but another brokerage procures the buyer while such cooperating broker is negotiating for the interests of the seller (i.e., broker’s agent);
  5. The commission percentage to pay the cooperating broker where the seller’s agent lists only, but another brokerage procures the buyer while such cooperating broker is negotiating for the interests of the buyer (i.e., buyer’s agent)

The article’s title attacks an industry (“colluding to rip you off”). Yet, this blogger theorizes that sellers care more about themselves and getting the job done (i.e., selling) than fixing an industry. Without commenting as to whether the authors have a point about collusion, its submitted that simply having our brokerage industry inform and educate our buyers of the statistical effects of their commission offerings will make meaningful change. Let’s give our clients the tools to make smart choices. Let’s educate the vulnerable consumers that we serve. It’s the job of a seller’s agent to explain to their seller the 5 points of negotiating commissions.

Real Estate Contract Originals Must be Retained

A New York Appellate Court, in Stathis v. Estate of Karas, recently addressed a lawsuit against an estate to enforce a real estate contract of sale that was entered into by the decedent pre-death. However, the Plaintiff could not produce the original contract of sale so he submitted a copy to the Court. The Court refused to accept the copy as evidence when hearing the case.

The Court explained that when a plaintiff wants to submit a copy, pursuant to the Best Evidence Rule of CPLR Rule 4539, they must establish:

  1. Why the original document could not be produced;
  2. That person’s attempts to find the original contract; and
  3. That the copy was a reliable and accurate depiction of the original contract.

In Stathis v. Estate of Karas, the Plaintiff failed to show why he could not produce the original contract, and what efforts he undertook to try and find such original contract. Also and most importantly, the Plaintiff failed to show that the copied contract of sale was a reliable and accurate portrayal of the original contract. As a result, the Plaintiff was not allowed to produce the copied contract of sale, the Appellate Court reversed a verdict in the Plaintiff’s favor, and a new trial was ordered. 

It is always safe to keep your original real estate contracts of sale because the burden of proof to submit a copy is hard to satisfy.


Beware of Form Contracts – Why Your Business Needs a Tailored Agreement

As an attorney that regularly practices commercial litigation, I read a lot of contracts. Some good, most bad. One disturbing trend that I have noticed is the willingness of businesses – both small and large – to use form contracts or contracts created for other companies. The justification I hear is the belief that the contract must be good enough because a larger or older company is using it. The thinking is simple – “if it works for them, why wouldn’t it work for me?”


This isn’t a knock on Blumberg forms or other form contracts. They have their purpose and may work for some people. I do, however, take exception to the thought that because it’s good enough for someone else, it is good enough for your business. It’s not, and the fact that I just finished a trial on a ten year old breach of contract litigation confirms that every business needs its own tailored contract.

Form contracts and contracts written for other businesses do not take into account the traits that make your business unique. Every business has a differentiator, especially in highly regulated fields. When you use a form contract, you are failing to include language that accounts for and takes advantage of the differentiator that makes your business successful.

Form contracts typically are overbroad and are not sufficiently specific. Blumberg doesn’t know the nuances of the agreement between your business and your clients, so their contracts are intentionally drafted using vague, ambiguous and broad terms and topics. In a breach of contract litigation, ambiguities are the death of your contract. Not only are ambiguities construed against the drafter of the contract (yes, you are considered the drafter of the contract if you choose a form contract[1]), but once a court finds an ambiguity, the door is open to parole (extrinsic) evidence which can potentially modify the written contract.[2] If you are fighting about what the parties “thought” the contract meant, you have already lost the battle.

My ten year old breach of contract case likely never would have gone to trial if the business had used a contract tailored to their specific business instead of using a generic contract used for their industry in general. Because the form contract included services and methods of payment that were inapplicable to the business, following a motion for Summary Judgment (asking for a pre-trial decision by the Court as a matter of law), the Court held that the contract was ambiguous. Once it was determined that the contract was ambiguous, the defendant was allowed to introduce a slew of evidence of oral representations allegedly made by the business which made the defendant misunderstand the written terms of the contract. If the business had retained an attorney to draft a contract specifically for the services that they provided instead of using a form contract shared between multiple businesses in the industry, there likely would have never been a lawsuit in the first place, let alone a trial.  

If you have the ability to control the contents of your contract and you take a shortcut or the cheap way out, you are being penny-wise but pound-foolish. A rock solid contract decreases litigation costs and increases the chances that you will be compensated for your goods or services. A defaulting party is less likely to challenge a contract in Court if the language is straightforward and tailored specifically to address the dispute in question. Finally, in the event that you are forced to go to Court to enforce your contract, a tailored agreement decreases the chances that there will be a trial[3] to resolve what the parties were really agreeing to when they entered into a written contract that was supposed to memorialize their understanding and agreement.

Be wary of forms.  




[1] Interested Underwriters at Lloyds v. Ducor’s Inc., 103 A.D.2d 76 (1st Dept. 1984)
[2] Hartford Accident & Indemnity Co. v. Wesolwski, 33 N.Y.2d 169 (1973).
[3] The interpretation and application of an unambiguous contract is a matter of law that may be disposed of in a motion for Summary Judgment, obviating the need for a trial. Hartford Accident & Indemnity Co. v. Wesolwski, 33 N.Y.2d 169 (1973).