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Why consumers don’t care about dual agency in real estate

The real estate consuming public wants results. In the last half century they’ve simply not made even a small deal out of dual agency.

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Dual agency in real estate

Buyer representation? Dual agency? NAR for heaven’s sake? Give me a break. Until I became a blogger I was both ignorant and apathetic about what opinions were held by others in the industry on those subjects. The only thing that has changed is the entertainment I sometimes enjoy while reading about them.

Keep in mind that most of these opinions are offered by agents who’ve never put together consecutive years of income equal to the national median. In fact, the vast majority of these pillars of agent ethics, according to their own association, earn far less than the national median.

In the 1960s and early 1970s I worked for a real estate firm sporting six offices and give or take 40 agents. About 65-75% of the agents were full time. In the two years I was the janitor and printer (mimeograph) of new listings, they closed over 1,000 transactions — over 2,000 ‘sides’ — 100% of which were dual agency sales. That same firm also escrowed the sales. Oh, the humanity! Furthermore, if one of their agents was caught showing another broker’s listings, he/she was fired on the spot. The company’s broker/owner didn’t cooperate with outside brokers – as policy. He refused to join the local board or the MLS. How could that work you ask? Simple, his company always had more listings under $20,000 (the magic number back then) than the entire MLS. He didn’t need them. They needed him.

And everyone knew it.

(Note: For the record, this broker didn’t employ nepotism very well either. Starting your son in the family business as the janitor for two years sends a pretty clear message, don’t you think? Dad was one of a kind.)

When inevitably the green monster of envy showed up in the form of an anonymous complaint to the DRE — bullies are almost always cowards too — he was unceremoniously audited within an inch of his life. It took three days. The auditor handed his card to the broker when he’d concluded his work, and said, “Mr. Brown, if you are contacted by the DRE about any broker’s complaint ever again, give me a call. Your files are the cleanest I’ve ever seen. If I ever decide to move, you will get my listing.”

It seems when the smoke cleared, integrity was what mattered. Integrity is the ultimate trump card.

I find it silly to even have to debate this subject, since most of the time it revolves around perception, not reality. Marketing deals with perception. Our behavior in the service of our clients must be more valuable than that. It must be real. Our clients must have faith in us and our integrity, not merely an ambiguous, often amorphous perception.

I work in the investment side of real estate. My clients invest to improve their retirement. A large part of my business is tax deferred exchanges. The consequences of a failed exchange can be ruinous in terms of capital gains taxes unintentionally caused.

Without boring you with tax law details, there are times in an exchange in which investors can be put at risk of owing capital gains taxes. If a transaction falls through at a critical point in the exchange, it can result in huge tax consequences, regardless of whose fault it was. In my experience this usually comes up when I’ve sold a client’s income property as the first stage of an exchange. There is a 45 day window from the time that sale closes in which the seller must ‘identify’ the property they will be exchanging into, using the equity/proceeds from the recently closed sale. If that property is listed by an outside broker who somehow causes the escrow to fall out, and the 45 days has passed – my client is rendered helpless. He can no longer take advantage of a tax deferred exchange, and will now owe whatever capital gains tax applies to that property.

The common denominator of these failures is the listing agent, virtually always a specialist in owner occupied housing.

This is why my clients PREFER to purchase properties I’ve listed. They know the other client is likely also exchanging for tax reasons and therefore equally motivated to perform. They also like that I’m in control of both sides.

Wait, it gets better.

I tell my clients, in writing, that if I sell their property myself it’s virtually guaranteed to be at a lower price than if another broker from the MLS brought their buyer to the table. Now this is where the chorus chimes in – “That’s at least the perception of evil! This is why dual agency is so wrong.” Blah blah blah, yadda yadda yadda. The next question is why sell for a little less, right? I’m glad you asked.

90% of the properties I sell for my clients are 1-4 unit rentals. Most of the buyers are represented by agents who couldn’t find their backsides with two guides, a map, and a GPS when it comes to income property. Their agents allow them to pay more than my clients would. (I’m with this when there’s no exchange involved, as who doesn’t like a higher price.) My clients make the decision to sell for a tad less, (usually 1-3%) because of the peace of mind they have knowing the sale, and therefore the tax deferred excchange is going to conclude successfully. Paying $50-100,000 in capital gains taxes because some house agent wannabe decides to dabble in investments isn’t worth getting $10,000 more for their property.

And for the record, I charge six percent — period. Of course, all this is disclosed to the max. I usually end up introducing the clients to each other, and some have become friends. They all have a signed, written disclosure by me on my letterhead, making my relationship with all parties nakedly transparent. One of the common denominators that makes this attractive to my clients is the knowledge that they’re buying property that hasn’t been broadcast to the public. They don’t have to compete with other buyers, making it even more of a seamless transaction. And the sellers prefer this approach for the above mentioned reasons. (I’ve always been told repetition is the best teacher.)

When I’ve given ‘mini-seminars’ in their homes, attended by their friends, neighbors, and family, it’s more likely than not that they’ve actually invited another client of mine to attend. It’s pretty effective when investors hear from satisfied clients that dual agency is sometimes the way to go. This is especially true when some of the attendees have experienced exchanges gone sideways due to an outside house broker’s poor performance.

However, now that my operation is national, not local in scope, I hafta deal with these wannabes regularly. The silver lining is that even if the sale of the original property in the exchange falls through, they’ve not yet incurred tax consequences. Since I advise/consult with the sellers of the properties they’ll eventually acquire, their safety remains assured.

Ultimately the reasons my clients do business with me is the same reason your clients do business with you: You offer solid value, expertise, and results. You operate with INTEGRITY. My clients come to me because they want to increase net worth, retire as soon as possible, and with as much tax sheltered or tax free income as they can possibly create. I strive to give them just that.

Dual agency is a non-issue debated by folks who are either jealous or, to give them the benefit of the doubt, afraid of what others might think of them. I have no problem with those who disagree with me and avoid dual agency as policy. In fact I admire them for walking their talk. I think most of them are sincere in their beliefs.

I just think they’re sincerely mistaken. Integrity should always triumph over perception. When perception wins, we all lose. Perception is too often a bully who doesn’t have anything else to say, so the issue is framed by how it might appear. To those who are on the fence, I say, grow a pair. Look others in the eye and stand on the platform of your integrity.

Dual agency is simply not an issue worth of all this drama. Here are the usual 4 arguments brought forward.

 1. The client has the potential to be injured by an agent who isn’t an angel.

If this is accepted universally then we must repeal the law of gravity. It also is employed daily by those not possessing either wings or a halo. This belief requires all agency to be eliminated due to the potential for abuse.

2. If he is the listing agent he can’t compose a low ball offer.

What, your forms software won’t work? There is no ethical prohibition to making low ball offers if the buyer insists on it, even if you’re also the listing agent. That offer doesn’t make you unethical, it makes you an agent. A seller can turn it down as he pleases, just as if he was represented by another agent. In fact, I’d be telling my client that his low ball offer will be turned down — due to my advice to the seller. 🙂 The seller’s already been told by me, verbally and in writing, that the ultimate sales price WILL BE lower than the buyer wasn’t also my client. They’ve made a totally informed decision to go with that scenario. (Just not low ball.) They know I won’t allow a stoopid low sales price, AS DOES MY BUYER CLIENT. They both know the story from beginning to end, and have opted in voluntarily.

3. If dual agency can ever be abused via bad agent intent, then it is universally a bad idea.

By that definition all agency is a bad idea as it can all be abused by bad intent. Using that approach, marriage is a bad idea. Government is a bad idea. Baby sitting is a bad idea. Only those unable to think for themselves buy into that school of thought.

4. The perception of the public favors an agent who refuses to participate in dual agency.

I’ve been hearing this since Nixon was in office, and apparently missed that tsunami of negative public opinion. Yet how many past clients refuse to do business with huge teams whose volume each year consists of 10-25% dual agency? I personally know a highly successful team leader in another state who listed and sold an attorney’s home himself. The attorney came to him to list the property with full knowledge it could result in a dual agency sale. The final false premise is that I must ‘persuade’ you that dual agency is universally good rather than evil. Shame on me for accepting that in the first place.

Nobody’s ever proved to me that dual agency is inherently injurious to our clients. What folks have said is it has the potential to be. I have the potential to be an escrow officer but haven chosen to eschew that path. An argument against dual agency based on the potential for agent abuse, or the public’s perception, or that it sometimes results in unethical behavior, is doomed to failure. We all choose to behave and conduct business ethically and with OldSchool integrity, or we don’t. The real laugher is that an agent behaves ethically during single agency deals, but misbehaves during dual agency. Really? You’re hangin’ your hat on that? You’re embarrassing yourself.

As for the public’s outcry on this subject, I’m deafened by the silence. 

This coming October will mark my 44th anniversary in the business. I’ve heard this dual agency ‘debate’ since I was 18. Yet, the public hasn’t cared a whit. It’s almost always the PC bully crowd makin’ most of the noise.

Please put forward an argument which logically stands alone. As you have noticed by now, I won’t defend my position based upon the potential for evil. Angelic behavior is not a requirement to make a living in real estate. Integrity and ethically based behavior is. Bad behavior is punished. The drunk driver is punished, but you and I aren’t prohibited from drinking because of the drunk driver’s sin.

Ayn Rand said it best: If the results you wish continually fail to materialize – check your premises.

The public simply never has, isn’t, and likely won’t buy your irrational reasoning. They’re far more interested in getting results.

Jeff Brown specializes in real estate investment for retirement, has practiced real estate for over 40 years and is a veteran of over 200 tax deferred exchanges, many multi-state. Brown is a second generation broker and works daily with the third generation. With CCIM training and decades of hands on experience, Brown's expertise is highly sought after, some of which he shares on his real estate investing blog.

Business Finance

How to survive a recession in the modern economy

(OPINION EDITORIAL) Advice about surviving a recession is common these days, but its intended audience can leave a large gap in application.

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There’s no question of whether or not we’re in a recession right now, and while some may debate the severity of this recession in comparison to the last major one, there are undoubtedly some parallels–something Next Avenue’s Elizabeth White highlights in her advice on planning for the next few months (or years).

Among White’s musings are actionable strategies that involve forecasting for future layoffs, anticipating age discrimination, and swallowing one’s ego in regards to labor worth and government benefits like unemployment.

White isn’t wrong. It’s exceptionally important to plan for the future as much as possible–even when that plan undergoes major paradigm shifts a few times a week, at best–and if you can reduce your spending at all, that’s a pretty major part of your planning that doesn’t necessarily have to be subjected to those weekly changes.

However, White also approaches the issue of a recession from an angle that assumes a few things about the audience–that they’re middle-aged, relatively established in their occupation, and about to be unemployed for years at a time. These are, of course, completely reasonable assumptions to make…but they don’t apply to a pretty large subset of the current workforce.

We’d like to look at a different angle, one from which everything is a gig, unemployment benefits aren’t guaranteed, and long-term savings are a laughable concept at best.

White’s advice vis-a-vis spending is spot-on–cancelling literally everything you can to avoid recurring charges, pausing all non-essential memberships (yes, that includes Netflix), and downgrading your phone plan–it’s something that transcends generational boundaries.

In fact, it’s even more important for this generation than White’s because of how frail our savings accounts really are. This means that some of White’s advice–i.e., plan for being unemployed for years–isn’t really feasible for a lot of us.

It means that taking literally any job, benefit, handout, or circumstantial support that we can find is mandatory, regardless of setbacks. It means that White’s point of “getting off the throne” isn’t extreme enough–the throne needs to be abolished entirely, and survival mode needs to be implemented immediately.

We’re not a generation that’s flying all over the place for work, investing in real estate because it’s there, and taking an appropriate amount of paid time off because we can; we’re a generation of scrappy, gig economy-based, paycheck-to-paycheck-living, student debt-encumbered individuals who were, are, and will continue to be woefully unprepared for the parameters of a post-COVID world.

If you’re preparing to be unemployed, you’re recently unemployed, or you even think you might undergo unemployment at some point in your life, start scrapping your expenses and adopt as many healthy habits as possible. Anything goes.

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Opinion Editorials

How strong leaders use times of crises to improve their company’s future

(EDITORIAL) We’re months into the COVID-19 crisis, and some leaders are still fumbling through it, while others are quietly safeguarding their company’s future.

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Anthony J. Algmin is the Founder and CEO of Algmin Data Leadership, a company helping business and technology leaders transform their future with data, and author of a new book on data leadership. We asked for his insights on how a strong leader can see their teams, their companies, their people through this global pandemic (and other crises in the future). The following are his own words:

Managers sometimes forget that the people we lead have lives outside of the office. This is true always, but is amplified when a crisis like COVID-19 occurs. We need to remember that our job is to serve our teams, to help them be as aligned and productive as possible in the short and long terms.

Crises are exactly when we need to think about what they might be going through, and realize that the partnership we have with our employees is more than a transaction. If we’ve ever asked our people to make sacrifices, like working over a weekend without extra pay, we should be thinking first about how we can support them through the tough times. When we do right by people when they really need it, they will run through walls again for our organizations when things return to normal.

Let them know it’s okay to breathe and talk about it. In a situation like COVID-19 where everything is disrupted and people are now adjusting to things like working from home, it is naturally going to be difficult and frustrating.

The best advice is to encourage people to turn off the TV and stop frequently checking the news websites. As fast as news is happening, it will not make a difference in what we can control ourselves. Right now most of us know what our day will look like, and nothing that comes out in the news is going to materially change it. If we avoid the noisy inputs, we’ll be much better able to focus and get our brains to stop spinning on things we can’t control.

And this may be the only time I would advocate for more meetings. If you don’t have at least a daily standup with your team, you should. And encourage everyone to have a video-enabled setup if at all possible. We may not be able to be in the same room, but the sense of engagement with video is much greater than audio-only calls.

We also risk spiraling if we think too much about how our companies are struggling, or if our teams cannot achieve what our organizations need to be successful. It’s like the difference in sports between practice and the big game. Normal times are when we game plan, we strategize, and work on our fundamentals. Crises are the time to focus and leave it all on the field.

That said, do not fail to observe and note what works well and where you struggle. If you had problems with data quality or inefficient processes before the crisis, you are not fixing them now. Pull out the duct tape and find a way through it. But later, when the crisis subsides, learn from the experience and get better for next time.

Find a hobby. Anything you can do to clear your head and separate work from the other considerations in your life. We may feel like the weight of the world is on our shoulders, and without a pressure release we will not be able to sustain this level of stress and remain as productive as our teams, businesses, and families need us.

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Opinion Editorials

Declutter your quarantine workspace (and brain)

(EDITORIAL) Can’t focus? Decluttering your workspace can help you increase productivity, save money, and reduce stress.

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It’s safe to say that we’ve all been spending a lot more time in our homes these last few months. This leads us to fixate on the things we didn’t have time for before – like a loose doorknob or an un-alphabetized bookshelf.

The same goes for our workspaces. Many of us have had to designate a spot at home to use for work purposes. For those of you who still need to remain on-site, you’ve likely been too busy to focus on your surroundings.

Cleaning and organizing your workspace every so often is important, regardless of the state of the world, and with so much out of our control right now, this is one of the few things we can control.

Whether you’re working from a home office or an on-site office, take some time for quarantine decluttering. According to The Washington Post, decluttering can increase your productivity, lower stress, and save money (I don’t know about you, but just reading those three things makes me feel better already).

Clutter can cause us to feel overwhelmed and make us feel a bit frazzled. Having an office space filled with piles of paper containing irrelevant memos from five years ago or 50 different types of pens, has got to go – recycle that mess and reduce your stress. The same goes with clearing files from your computer; everything will run faster.

Speaking of running faster, decluttering and creating a cleaner workspace will also help you be more efficient and productive. Build this habit by starting small: try tidying up a bit at the end of every workday, setting yourself up for a ready-to-roll morning.

Cleaning also helps you take stock of stuff that you have so that you don’t end up buying more of it. Create a designated spot for your tools and supplies so that they’re more visible – this way, you’ll always know what you have and what needs to be replenished. This will help you stop buying more of the same product that you already have and save you money.

So, if you’ve been looking to improve your focus and clearing a little bit of that ‘quarantine brain’, start by getting your workspace in order. You’ll be amazed at how good it feels to declutter and be “out with the old”; you may even be inspired to do the same for your whole house. Regardless, doing this consistently will create a positive shift in your life, increasing productivity, reducing stress, and saving you money.

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