Counter Intelligence: The Real Estate Cafe Weblog

What regulatory reforms are needed to protect real estate consumers?

Fee-for-service real estate: professional advice without cartel pricing

Comment posted to debate on USNews & World Report's real estate blog, Home Front, asking: "Do you need a real estate agent to sell your home?"

More than a decade after the former chief economist of the National Association of Real Estate said...

"The next major revolution in real estate will be fee-based services replacing the blanket commission pricing that has dominated the industry for so long."

...it's discouraging to see this debate reduced to two options:

"There are two general ways to sell a piece of real estate. You can do it yourself (usually known as doing a for sale by owner, or FSBO), or you can utilize the services of a real estate agent."

There are dozens of tasks in both the home buying and selling process that web-savvy real estate consumers can purchase "a la carte" to meet their specific needs, without incurring a five to six percent real estate commission.

IMHO, presidential debates should not ignore credible third party candidates, and this residential debate should not exclude alternative fee-for-service business models either.  Those business models -- together with long overdue industry reforms -- will enable buyers and sellers to save billions of dollars annually without sacrificing the benefits of professional advice.

$60 Billion question: How do consumers uncouple real estate commissions?

If you live in New England and would like to join our experimental "FSBO Support Group," please contact us by phone (617-661-4046) or email.

Billion dollar break-up: Protecting rebates vs divorcing two-sided real estate commissions

Redfin's corporate blog is cheering because an "Anti-Rebate Bill" introduced in Illinois that would have banned real estate rebates has apparently died in committee, or in Redfin's words, been "crushed."  Other sources report that the bill has changed focus, and as The Black Knight in Monte Python's Holy Grail famously said, may not be dead yet.  According to sources, there may still be an attempt to morph the anti-rebate bill into a procuring cause bill before Friday's deadline, which could be extended.  What's at stake is the definition of procuring cause, a legal concept which Realtors use to decide who procured the buyer, and therefore who is entitled to collect the buyer agency fee under their guidelines.  Although the exact language has not been shared, Redfin and other sources allege that the reworded bill would require a buyer agent to accompany their client to property showings to collect the buyer agency fee offered through the multiple listing service (MLS).

Buyer agency compensation is an old family fight in the residential real estate industry, one the consumer has been dragged into because a growing generation of discount business model use rebates to hook home buyers.  What most home buyers don't realize is the two-sided real estate commission is obsolete, and some critics have likened it to a real estate transfer tax (hence our photo above).  So, IMHO, firms discount business models like Redfin are actually propping up an artificial pricing structure and reinforcing a barrier to competition and consumer savings.  While a recent Redfin blog post called the 3% buyer agency fee "boring," it did not challenge it or call it unnecessary or anti-competitive.  In fact, the blog post says "Redfin has always been careful when listing a home to encourage our clients to offer the buyer’s agent 3%..."

I agree with Redfin, the proposed IL bill is not the answer, neither in it's original form, which sought to ban rebates; nor it's amended form, which may seek to define procuring cause.  However, there is a long overdue reform that would reduce real estate commissions by billions of dollars annually:  separate fees for listing agents and buyer agents.  Think of it as a real estate version of BYOB: Bring your own broker.  That's the only way to create an open, competitive market place in residential brokerage, where as one attorney wrote:   "the ability to freely price one’s service is a pretty basic, bread and butter tenet of competition." The Consumer Federation of America first proposed that reform 16 years ago, and there is growing interest in "divorcing" the commission even within the Realtor community.  You can learn more by viewing this 90 second slide show:

Uncoupling the traditional two-sided real estate commission:  10 Mega-trends leading towards a tipping point (click to see video)

As the real estate industry transitions to a more competitive marketplace, The Real Estate Cafe's will continue to offer a menu of hourly and flat fees plus rebates, including a 100% rebate option.  However, we'd prefer to work with other change agents to unlock billions of dollars of consumer savings annually by compensating buyer and seller agents independently.  If you are interested, please use this wiki to brainstorm about building a coalition and action plan to divorce real estate commissions.  If you'd like to meet in person in Boston, no need to BYOB -- we'll buy the beer.

Misleading home buyers: Conflict of Interest? What conflict of interest?

Thankfully, a recent NYTimes article, Feeling Misled on Home Price, Buyers Sue Agent and an interview hours ago on Today on MSNBC, are beginning to shed light on deceptive real estate practices.  However, the article doesn't expose widespread conflicts of interest that contributed to the real estate bubble and their growing cost to society. 

1.  For starters, look more closely at this misleading statement:

"As prices spiked, buyer's agents and brokers became popular as sounding boards, advisers and negotiators. The National Association of Realtors estimates they are now involved in two-thirds of all residential purchases."

That makes this the first housing collapse in which large numbers of buyers had a real estate professional explicitly looking after their interests."

My guess is that one in five * transactions or about a million sales of existing homes during 2006 involved "designated agents" or some other name that papers over the conflict of interest that occurs when buyer and seller are represented by the same brokerage firm. (* In some markets, the ratio could be considerably higher.)

2.  The means that home buyers do not receive proper advice and protection, or as a partner in a real estate agency told the NYTimes:

"We have seen so much misrepresentation over the last five years," he said. "So I appreciate where these buyers might be coming from: 'I'm a lowly consumer, you're certified by the state of California, you didn't do X, you didn't do Y, and I got hurt.' "

3. The NYTimes speculates that consumers, angry that their counterfeit buyer agents did not provide adequate advice and protection, will increasingly take legal action. Will their collection actions rise, at some point in some overvalued market, to a class action lawsuit? 

"The Ummels may be on the leading edge of the law, but they are unlikely to be alone for long. With the market falling, many homeowners owe more on their mortgages than their houses are worth. And many of those deals involved brokers who are required to carry professional liability insurance, presenting a tempting target for angry buyers.

'If you put someone into a property at the top of the market, you look really bad if it goes down,' said K. P. Dean Harper, a real estate lawyer in Walnut Creek, Calif. 'There are a lot of letters going out from lawyers to real estate agents saying, 'My client would never have purchased if you had properly evaluated the market conditions and the value of the property.' "

 

4.  A series of "Dual Agency Detective" blog posts dating back three years predicted "a new era of heart break for real estate consumers."  Although it's easy to poked fun at designated agency with political cartoons, the cost to individual home buyers and society, as this prophetic case attests, is no laughing matter:

My so-called buyer's agent (who promptly switched roles at contract signing without explanation), initially advised me to bid $750,000 for my house of choice, which was listed at $699,900. When I told her that such an offer was beyond my price range, she was quite adamant that I not offer anything under the list price. When I finally backed out the deal because of her bait and switch scam, I later heard that the house in question sold shortly afterwards for $682,000--in other words, nearly $70,000 less than the bid suggested by my so-called buyer agent.

This type of price inflation (caused by seller's agents masquerading as buyer's representatives) must have a very distorting impact on housing costs.  The economic fallout is enormous: ordinary citizens are forced to move out farther in search of decent, affordable places to live, which  leads to a host of problems connected with traffic congrestion, suburban sprawl, etc.

As I perceive it, the real estate cartel's use of dual agency [a.k.a. "designated agency"], which works to the detriment of the average consumer while enriching dishonest agents through the practice of double-dipping, contributes significantly to the manifold problems we see in the residential housing market and therefore should be fully exposed.

5.  Who will end up paying the cost?  Commenting on the mortgage package included in the tax rebate agreement announced by Congress and the President, a link on BostonBubble reads: "Profits privatized, risks socialized - Economic stimulus a wealth transfer from the middle class to the rich and the reckless." See Paper Money's blog post for call to action.

Conflict of interest, what conflict of interest?

PS.  The NYTimes may not have gone far enough, but the story (once, the most forwarded story in the NYTimes) is echoing around the blogosphere.  Some in the industry are worried this may be "the tip of the iceberg," and the buyers told MSNBC's Today show they want to change the industry.  Sounds like the Consumer Revolution we've sought over the past 15 years.

Pre-testing consumer survey of housing prices in Greater Boston: 2008 to 2012

Over the past three years, The Real Estate Cafe has blogged about the real estate bubble. Now we'd like to get YOUR opinion about what will happen to housing prices in Greater Boston and an update on your home buying plans for 2008.

Right now, we're only looking for a few respondents to help us PRE-TEST our survey.  Can you spare a few minutes?  Your feedback will help us better understand the market and better serve home buyers like you.

Privacy Policy: Survey responses will be tabulated as a group without attribution to individual respondents. Your identify is confidential will not be shared with anyone.

Call for Real Estate Consumer Bill of Rights expanding?

Glad to read that fellow real estate innovators are blogging about a real estate consumer bill of rights and that a CNN reporter may be working on a story.  Given that, maybe it would be worthwhile for readers to collaborate on a short history of efforts to create a Real Estate Consumer Bill of Rights.  Since everyone in Boston is talking about the "Rolling Rally" today for the World Champion Red Sox, hope you don't mind if I use a baseball metaphor to categorize time:

1st Inning:  To my knowledge, Erle Rawlins, a buyer agent / consumer advocate in Dallas, Texas wrote the first draft of a real estate consumer bill of rights in 1999.  A working draft is currently online on The Real Estate Cafe's wiki.  Our goal is to invite the public to comment and coauthor on the wiki.

2nd Inning:  Two years later, in May 2001, a coalition of leading real estate consumer advocates nationwide -- including buyer agents, fee-for-service consultants, and for sale by owner publishers -- cosigned a petition calling for a Real Estate Consumer Bill of Rights which Consumer Union, publishers of Consumer Reports, echoed in their testimony in Congressional hearings on banks as brokers:

"We also call on Congress to hold hearings on the real estate marketplace. ...Are consumers being treated fairly by real estate brokers? Are commissions priced fairly?" asked Consumers Union legislative counsel Frank Torres during testimony May 2nd before the U.S. House of Representative's Committee on Financial Services Subcommittee on Financial Institutions and Consumer Credit.

"Perhaps what we should be talking about is a Real estate Consumer Bill of Rights."

3rd Inning:  Note sure of the dates, by my recollection is that some government agencies began discussing a borrower's bill of rights.  Here's a link to one version by the Mortgage Bankers Association published on their website, StopMortgageFraud.com, copyright 2002.  (Your comments and links to other borrower's bill of rights are most welcome.) 

4th Inning:  In May 2006, The Real Estate Cafe reminded fellow real estate consumer advocates that it had been five years since the call for Real Estate Consumer Bill of Rights had been heard in Congressional testimony.  That was six months after we initially blogged about the topic.

5th Inning:  To my knowledge, Redfin released their version of a real estate consumer bill of rights about seven months ago, on or around April 2, 2007.  Personally, I was pleased to see Redfin expand talk about creating a real estate consumer bill of rights and encourage others to separate the need for consumer protection from their critique of Redfin. 

6th inning:  The call for a real estate consumer was greeted enthusiastically in informal conversations at a workshop on mortgages and lending hosted by the Congressman Barney Frank (D-MA), Chairman of the House Committee on Financial Services at the Federal Reserve Bank in Boston on Friday, October 26, 2007.

Where will those private conversations with legal and consumer advocacy groups lead?  I hope there will be a growing recognition that a Real Estate Consumer Bill of Rights is long overdue and more timely than ever.  Whether you are a homebuyer, seller, or professional, we'd love to know what you would like to see included in a Real Estate Consumer Bill of Rights.  As written in the past, I'd love to see real estate commissions separated.  This short video / slide show, created nearly two years ago, bullet points 10 mega-trends leading towards that tipping point.

Will real estate consumers begin comparing hourly fees to savings?

What's a familiar story about agents vs "for sale by owner" properties doing "above the fold" on page one of the New York Times?  Because:

"The findings [-- that "One City'€™s Home Sellers Do Better on Their Own --] fly in the face of studies by the National Association of Realtors. The group has said that houses sold via its members' local multiple listing services get a 16 percent premium over homes sold by their owners."

The timing of the story is also important because it echoes a Wall Street Journal headline this week cautioning "What You Don't Know About Real Estate May Cost You."

One of the stunning findings in research conducted by the AARP and Consumer Federation of America is that "Only about one-quarter of respondents knew that they can negotiate broker commissions." Apparently another WSJ story three years ago which advised consumers that "It Pays to Negotiate Your Agent's Commission," has had little impact (despite a reference to The Real Estate Cafe's 100% rebate model ;-)

So how can an enlightened homebuyer or seller compare the value added by real estate agents versus their level of effort and cost of doing business?  One of the researchers in the NYTimes article concludes that real estate consumers will begin asking for time sheets:

"...sellers [and homebuyers?] will begin to examine more closely the cost of all the small tasks handled by agents. To justify a $12,000 fee on a $200,000 house, he said, "you'd have to have a very high hourly rate" for an agent's work."

Another industry critic, Mark Nadel, says that kind of disclosure could help deliver an estimated $30 billion annually in consumer savings.  Yes, existing fee-for-service business models like The Real Estate Cafe would benefit greatly from such a regulation, but if "unit pricing" is now commonplace in supermarkets why not require similar transparency in real estate so homebuyers and sellers can compare effective hourly rates? 

Want to see time sheets for our past clients and compare their total hourly fees to savings last year?  Ask our competitors -- traditional full commissions or competing rebate business models like Redfin -- for the same information so you can compare hourly fees and savings side-by-side.  (Our goal is to help you save so much money, you're GLAD to help save a life as well.)

Think Outside the Commission

Fifteen years after the Consumer Federation of America first called for the traditional two-sided real estate commission to be uncoupled (a reform they repeated recently in congressional testimony), some momentum is finally building to change the way real estate agents get paid.  What's surprising is that the most recent proponent has presented his case to fellow professionals through a provocative mini-series called "The end of MLS as we know it."  Policies once assumed to be barriers to implementation may no longer be obstacles, according to a well-respected attorney who advises multiple listing services.  That's GREAT news for real estate consumers who could save billions of dollars annually:

It is widely believed that it is impractical or impossible for the buyer to pay her own broker at closing. A report published in spring 2006 discussing the future of MLS considered the idea of buyers paying their own brokers: "It is unlikely that this will happen unless HUD and Fannie Mae allow the buyer to finance the portion of the commission that the buyer would need to compensate their own agent."

In fact, HUD and Fannie Mae regard a commission paid by buyer to buyer’s broker at closing as a valid closing cost. In other words, to the extent that closing costs can be financed, a buyer broker’s fee can be financed as well. The traditional view is that the buyer borrows money to pay for the purchase price and comes to the closing with the closing costs in cash. Practically speaking now, buyers have the option to come with a piggyback loan ready to cover some of the down payment and closing costs in return for a second lien position on the property. There may even be tax advantages to this approach for the buyer.

One of the first fee-for-service business models in the country, The Real Estate Cafe has been encouraging consumers and real estate professionals to "Think Outside the Commission" for more than a decade.  In fact, we've been monitoring mega-trends pushing towards a "tipping point." To learn why we think this transition is inevitable, take 90 seconds to view our video online.  Then, contribute your own ideas about how consumers and industry innovators can begin demonstration projects, document best practices, and deliver billions in consumer savings. 

If you're a homebuyer who can't wait for the industry to transition, The Real Estate Cafe already offers a variety of money-saving compensation options, including a 100% commission rebate plan.  If you're a lender interested in a demonstration project to that would give consumers the option to BYOB (Bring Your Own Broker), The Real Estate Cafe is eager to experiment and will gladly host a chat online or real estate roundtable in Boston to brainstorm next steps.

Call for Real Estate Consumer Bill of Rights: 5th Anniversary

Five years ago this week, a coalition of leading real estate consumer advocates nationwide -- including buyer agents, fee-for-service consultants, and for sale by owner publishers -- cosigned an petition calling for a Real Estate Consumer Bill of Rights which Consumer Union, publishers of Consumer Reports, echoed in their testimony in Congressional hearings on banks as brokers:

"We also call on Congress to hold hearings on the real estate marketplace. ...Are consumers being treated fairly by real estate brokers? Are commissions priced fairly?" asked Consumers Union legislative counsel Frank Torres during testimony May 2nd before the U.S. House of Representative's Committee on Financial Services Subcommittee on Financial Institutions and Consumer Credit.

"Perhaps what we should be talking about is a Real estate Consumer Bill of Rights."

Bloggers, consumer advocates, and real estate innovators -- not to mention the US Department of Justice and Federal Trade Commission -- are renewing investigations into competition in real estate with a new urgency fueled, in part, by discrimination against flat-fee MLS listing services and their customers, plus industry-supported efforts to establish minimum levels of service for brokerages in an increasing number of states.

Homeowners trying to sell "for sale by owner" also face subtle and overt forms of discrimination, as do homebuyers using alternative real estate business models.  If you've been a victim, we'd like to hear from you privately at [email protected]. 

Congressional hearings or not, doesn't it make sense -- as it did five year ago -- to ask regulators and other public officials to begin talking about a long-overdue Real Estate Consumer Bill of Rights?  Last October, The Real Estate Cafe began blogging about individual articles, and would be glad to restart that discussion before the National Association of Realtors Midyear Legislative Meetings in Washington, DC, May 15-20, 2006.  We invite your comment below; on our record a podcast line:  617-876-2117; or if you're really interested in getting involved, our wiki.

10 Mega-tends push real estate commissions to a tipping point

Speculating about why his recent blog post on real estate commissions "under siege" generated over 200 comments, Bradley Inman, founder of highly respected Inman News, asked readers if the existing commission structure had reached a "tipping point?"

Yes, ten mega-trends, some of which Inman identified, have pushed the obsolete commission structure to a tipping point; but from the real estate consumer's perspective, the commission won't reach a break point until the traditional two-side MLS commission is "decoupled" -- a recommendation the Consumer Federation of America first made fifteen years ago.

What series of actions are needed next to break-up the two-sided commission?  That's the discussion question asked by this 90 second video (which can be paused at any point), originally prepared for federal regulators but never officially submitted at the end of last year.  The answer to that question will unlock billions of dollars in consumer savings annually, so comments from both real estate change agents and consumers are needed below, recorded on our readers' line (617-876-2117), or sent privately to [email protected].

The heated debate on Inman's blog gives us the opportunity to update and expand our tipping point presentation before submitting it to the Federal Trade Commission and Department of Justice.  One typo is worth highlighting:  DirectDirect.com should read DeWolfeDirect.com.  In 2002 (before being acquired by giant NRT), DeWolfeDirect's website read:

Unbundled Pricing brings innovation to the cost of selling or buying a home. Selling a home requires a certain investment, as does finding and buying one: equal tasks with equal expense. Curiously, traditional commission models require the seller to pay for both of them. We believe it would be more logical if each paid for their own part of the transaction, so we treat them separately (emphasis added). We also use a scaled percentage model that reduces the rate for higher priced homes.

It is equitable, straightforward, honest, and revolutionary (emphasis added).

Anyone else agree it's long overdue, and due time federal regulators make it -- uncoupled commissions -- happen?