The atypical purchase offer

DEAR BERNICE: We found a house we really like -- and saw it at an open house. The agent was busy talking to another couple, so she didn't get our name and number. Can we just write an offer without an agent and have the sellers give us a 3 percent credit? --Jill S.

DEAR JILL: There are several answers to your question, depending upon the type of listing agreement the sellers have with their agent. You can certainly write an offer with or without an agent. Whether you can get a 3 percent credit, however, is an entirely different matter.

1. What type of listing is it?
If the seller signed an "exclusive right to sell" listing, this means that the company who has the listing will receive the commission no matter who sells the property. Even if the owner sells to a friend or family member, if the sale takes place during the listing period, the seller owes the brokerage the commission. This is the most common type of listing agreement. In most cases, the listing broker will post the listing on the multiple listing service and will offer to share a portion (normally half) of the commission with the brokerage that represents the buyer in the transaction. If you write an offer on a property that has an "exclusive right to sell" listing and an agent does not represent you, then the listing brokerage would be entitled to the full commission.

If the listing is an "exclusive agency" listing, the seller has the right to sell the property without the agent and without a commission. The listing agent can still post the listing on the MLS and offer a portion of the commission to the agency who represents the buyer. This type of listing is relatively rare. The reason is that the listing agent is required to disclose that the seller can sell the property directly to a buyer -- an agent might bring a buyer to the property and then the buyer might try to cut a deal directly with the seller.

The seller can legally sign an "open listing" with a number of agents. The agent who brings the offer is the one who earns the commission. This arrangement can cause difficulties for almost everyone involved in the process. For example, a seller may sign an open listing with one agency. When it doesn't sell, the seller decides to sign another with a different agency at a different price, even though the other agreement is still in force. The two different prices may appear on places such as Craigslist. The issue is: Which price is right?

In "one party" listings, the owner is obligated to pay a commission only if he or she accepts an offer from the person(s) named on the one-party agreement. An agent who is representing a buyer may ask the owner to sign a one-party listing for their client only. If that agent successfully negotiates an offer for his or her client, then a commission is due.

2. How much is the commission?
As a buyer, you may not know how much the commission is on a specific property. Again, this depends upon the listing agent. In some cases, some brokerages do not cooperate with other agents. Thus, there is no buyer's commission at all. ...CONTINUED

All rights reserved. This article may not be used or reproduced in any manner whatsoever, in part or in whole, without written permission of Inman News. Use of this article without permission is a violation of federal copyright law.