The buyer agent commission mistake that could cost you

Almost every week now, a version of the same question lands in my inbox. It came up three separate times on a recent Monday coaching call, from three different agents in three different states, and it tells me the industry is still tangled up about how to handle buyer-agent compensation after the settlement.

So let me untangle it, because the rules are actually simpler than the anxiety around them.

Your agreement sets the ceiling

Start with the fear that is costing agents the most sleep: the fear of leaving money on the table. Here is the situation I keep hearing. An agent signs a buyer agency agreement for 2 percent. Then the buyer falls in love with a new construction home, and the builder is offering 3 percent. The agent’s instinct is to grab the extra point.

Do not do it.

Whatever your buyer agency agreement says is what you can be paid. Period. If you signed at 2 percent, 2 percent is your number, even if the builder is waving 3 percent in your face.

I want to be very clear about why, because this is where agents talk themselves into trouble.

• It does not matter if you call the extra money a bonus.
• It does not matter if the builder calls it an incentive.
• It does not even matter if your buyer signs a paper saying they are fine with you taking more.

If you collect more than your agreement states, you are exposed, and if it goes in front of a jury, you will lose.

Ask yourself the one question a jury will ask: Does me taking that extra percent help my buyer? The answer is no. It helps me. And a jury loves to punish an agent who put their own pocket ahead of their client.

So, the rule is not complicated. Your agreement is your agreement.

Start high and give yourself room

Now here is the fix, and it is elegant once you see it. You can always come down. You can never go up.

Stop signing your buyers at the lowest number you are willing to accept, and start signing them at the highest number you would ever want. If you work in a market with new construction where builders routinely offer three percent, then put three percent on your buyer agency agreement, not two. Because from three, you have room to move.

Show that same buyer a resale where the seller is only offering one percent? Now you have choices.

• You can ask the seller to raise the price by a point and cover it.
• You can waive the difference.
• You can even hand the extra back to the buyer to help them close.

Every one of those moves is clean, and every one of them is only available to you if you started high.

Be specific, not vague

There is a right way to write this into the agreement and a wrong way. The wrong way is vague language like “up to three percent.” Never use “up to.” Be factual and specific instead.

My fee for residential resale is this. My fee for new construction is this. My fee for rentals is this. Spell it out by category, in plain numbers, and you are protected.

While you are at it, put a rental clause in your listing agreements, too. If a seller gives up on selling and decides to rent the home instead, you want your fee and your expiration date already spelled out, not renegotiated in the moment.

Keep the 2 fees separate

Let me connect this to the listing side, because the same clarity applies there. What the settlement changed is that you can no longer publish a buyer-agent fee on the MLS. That is the actual rule. It did not, however, take away your ability to run a professional listing conversation.

There are two ways to handle it. One, you can still sit with the seller and ask for a full fee, then quietly negotiate the buyer-agent portion later when an offer comes in. That is permitted.

But my preference, and what I encourage agents to do unless their broker directs otherwise, is cleaner. Ask for your listing fee, just the listing fee, whatever that is. Then, when a buyer’s agent from another company brings an offer, negotiate that compensation at that moment.

The lawsuit was about price fixing, and the simplest way to stay a mile away from that accusation is to keep the listing fee and the buyer-agent fee as two separate conversations.

You can signal cooperation without naming a number

That raises the obvious question. If I cannot post a fee, how does a buyer’s agent know my seller will cooperate? You cannot state a number in the MLS, but you can absolutely signal willingness.

I see nothing wrong with a remark that reads, “Seller is very willing to work with buyer agents,” or simply, “buyer-agent friendly.” You are not naming a dollar or a percent. You are communicating that this seller understands cooperation moves homes, and any competent agent will read that correctly.

Plan for dual agency up front

One more piece, for when you represent both sides: If you bring your own buyer to your own listing, that is dual agency, and your paperwork should disclose it up front.

A well-built one-page buyer agency agreement handles this by stating what your buyer-side fee is when you represent both parties, so the homeowner is simply notified in advance. No surprises, no awkward conversation at the closing table.

Sign your buyers at the highest fee you would ever want, because you can always come down and you can never go up. Set it low and you are stuck. Set it high and every option stays open.

None of this requires a law degree. It requires you to decide your fees in advance, write them factually, keep the listing fee and the buyer-agent fee in separate conversations and never, ever reach for money that is not in your agreement.

Do that, and you will walk into every appointment this year calm, confident and completely protected. Your clients can feel that certainty. It is one of the reasons they sign.