All Things Buyer Broker Agreement with Landmark Title

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TRACY HAYES: [00:00:00] Real Estate Excellence Podcast special edition show today as I have two of the most respected real estate attorneys in the studio today, Rose Albert and David Heakin of Landmark Title. Our discussion today is focused on the Buyer's Broker Agreement that will become required August 17th, this coming Saturday.

TRACY HAYES: After announcing this show, many agents have, uh, that have been a guest, uh, for a while. gave me a lot of questions. So we're going to go through those questions because it's going to lead us really into a lot of what this is all about. And obviously the concerns I would recommend to all agents, if you still have questions or want further clarification, the guidelines call the Florida realtors hotline.

TRACY HAYES: And go on their youtube page because there's great videos there as well rose and david welcome to the show Welcome to the hot seat. Thank you. Thank you for having us This you know our our pre game discussion here of everything There's this discussions are going to go on for months I think through a lot of this and working through and I know david you give it your cell phone out [00:01:00] number out to a lot Of people you're going to be I'm called probably every, every day, several times a day for the next few months until we start working.

TRACY HAYES: Well, of course, you guys, and you guys are doing a lot of training. So you're trying to get everyone up to speed, but 

DAVID: we've been training for the last several months. We started right off the bat, both with the far bar contract changes and starting to talk about buyer broker agreements just to get the conversation going because people had so many questions and it was only a few weeks ago that these forms came out.

DAVID: So Uh, there was a lot of anxiety, so just trying to, just trying to think through it with people is really what we've been doing for the last few months. 

TRACY HAYES: So for those who don't know, uh, David and Rose, uh, like I said, give you guys a little 30 second elevator pitch of, of who you are. 

DAVID: Well, thanks. Uh, so I'm David Heekin.

DAVID: I'm the CEO and owner of Landmark Title. We are the number one, uh, market share title company in Northeast Florida for the past 11 years. Got a fantastic staff. Rose is our general counsel and has been huge in helping us get ready for all the changes that are coming [00:02:00] up. Yeah. 

ROSE ALBERRE: Yes. As David said, I am the general counsel, landmark title.

ROSE ALBERRE: I've been an attorney for aging myself here over 20 years. I started out doing a civil litigation until I found my niche in real estate and I love it. 

TRACY HAYES: Excellent. Excellent. Excellent. And, uh, landmark to have just being so highly respected in the area. Um, August. I wanted to just go through. Well, actually, I wanted the first question.

TRACY HAYES: Actually, I had written down here because I think, uh, some, what does antitrust mean? The whole lawsuit. And because that's the language that's thrown out there. Oh, that might be a violation of antitrust. How does it apply here? 

ROSE ALBERRE: So the main thing is the jury rendered a 1. 78 billion verdict because They found evidence that sellers were, um, being, I don't, I don't want to say the word tricked but that they were, the allegation was, the [00:03:00] arguments were made that they, that there was a conspiracy to fix brokerage commissions.

ROSE ALBERRE: So anti trust, anti competition, that is what, um, the violation stemmed from and the jury found that they were guilty of. 

TRACY HAYES: They lost the trust of the consumer. 

ROSE ALBERRE: Yes. 

TRACY HAYES: That's what the jury 

ROSE ALBERRE: found. 

TRACY HAYES: Was it more the sellers or really the buyers that, because I think in most cases, like you said, there was agents out there.

TRACY HAYES: We know they were saying, Oh, you don't have your, the, my commission's not going to come out of your pocket. Don't worry about that. Yeah, that was 

ROSE ALBERRE: one of the arguments, but the sellers, their argument was that the brokerages, NAR, the National Association of Realtors, and a lot of the, you know, the named brokerages, that they were conspiring to fix commissions in violation of the antitrust, anti competition laws.

TRACY HAYES: I'm going to have you just pull that mic a little bit closer to you. Yeah, just pull, I mean, yeah, good. Alright. Some of the things I want to put down as facts that I don't, you know, again, listening that the mastermind [00:04:00] feeling these questions and you guys tell me if you agree or disagree, the MLS, your local MLS, whoever you is in charge of compliance and enforcement.

TRACY HAYES: Correct for this. Okay. Cause I want, I want everyone to do, cause we, uh, Rose and I, you were talking the term legally and obviously the DOJ has their hands in it, but really your local MLS is technically the police at this point. Uh, and if you think someone's violating these, this agreement, you're going to report it to the MLS.

ROSE ALBERRE: For now, yes. 

TRACY HAYES: Yes. Um, the buyers are broken agreement can be amended and I used we talked a little bit at any time I, we talked a little bit about pre show and having, watching some videos, there's recommendations of when or when not to amend it. EXP was recommending their lawyer says don't do it after you actually go see the house.

TRACY HAYES: Cause it might look like a bait and switch. Um, but there is nothing that says you can't. There's 

DAVID: nothing that says you can't. 

TRACY HAYES: Yeah. [00:05:00] Yeah. 

ROSE ALBERRE: It's a contract like any other contract, but of course you have to think of the practical effect too. You know, I mean, you, People are struggling to have that conversation.

ROSE ALBERRE: Are you going to want to have it multiple times? I think get it right the first time and explain it. Prove your worth. 

TRACY HAYES: Uh, the, the obvious is everyone's the buyer sides commissions cannot be displayed on anything related to the MLS. You know, we talked about flyers that they download from the internet as there's many software programs out there for lenders that we can go on and see what a particular agent's listening to her and say, Hey, we'll create a flyer for you.

TRACY HAYES: That's pulling from the MLS. And I can't have anything, anything referred to commissions. And right now today, most of them don't even have anything for concessions either. But from what I'm understanding, concessions will come in where if they're offering a 3 percent to the, you know, help a first time buyer with, with their closing costs or something.

ROSE ALBERRE: Yeah, there are many ways, many ways [00:06:00] off of MLS. that you can negotiate compensation. We've spoken about some of them. Um, you can look at the NAR frequently asked questions, um, watch the videos on the NAR resource website. There are lots of ways to do it. And one way that we've been talking about is, um, the website that we talked about too, uh, the pie slice.

ROSE ALBERRE: If no one has heard of this yet, I strongly encourage you to go to www. thepieslice. com. I recently did a demo and I was so impressed because it's hard enough as a busy real estate agent to keep track of your negotiation communications with other agents. Um, this is one place. Where you can go you type in the the listing agents Contact info the property address and it automatically Generates the conversation.

ROSE ALBERRE: All you need [00:07:00] to do is fill in fields. You just fill in fields and it asks the question It's amazing. It's a template. Um, and it and it trans transcribes the conversation the negotiations for you And then once you reach an agreement You can even right away Print out the compensation agreement filled out, have it signed before you even tour home.

TRACY HAYES: David, do you agree with having a, an agreement like that? 

DAVID: Yeah, 

TRACY HAYES: I haven't 

DAVID: done, um, I have not, I was not able to, I was outta town. I wasn't able to sit in on, on the, uh, webinar that she sat on. But I've had Good, I've heard really good things about it. Mm-Hmm, . So, um, it's certainly one way to do it. I mean, as long as it's not through the MLS or the IDX feed, so Zillow or Redfin or anything like that.

DAVID: idx is it, it can be. It can be flyers in the flyer box. It could be right on the sign. It could be, uh, taped to the front door. It could be on the kitchen counter. It can be on the website. You know, it could be just email each 

TRACY HAYES: other exchange, but the [00:08:00] pie slices actually ones that you need to negotiate. Some of them may be just straight out.

TRACY HAYES: Hey, we're, we're gonna have a 2. 5 percent or 3 percent buyer side, right? Agent incentive, right? One 

ROSE ALBERRE: thing I really love about it is it's private. It's just between you and the listing agent. You can invite viewers such as the buyer or your broker to watch the conversation. They can't participate, but it's, there's one school of thought that they, people don't want to just blanket advertise what they're offering on a property because it's a, it's a negotiable term.

ROSE ALBERRE: Of every of every offer, you know, so if you're getting a cash quick close at full asking price You might want to pay a higher commission on an offer like that as opposed to You know one that you highly doubt will close So this is one where you're not Advertising to the world what a seller is willing to pay 

TRACY HAYES: but I would imagine is someone Challenged it or said.

TRACY HAYES: [00:09:00] Hey, what's going on? You guys are You Violating antitrust, you're working behind the scenes, you could actually print off the conversation. 

ROSE ALBERRE: You have a whole transcript and you can invite the consumer to watch the whole thing. 

DAVID: Right. Yeah, the funny thing is that the whole part of the DOJ was they wanted things to be more transparent.

DAVID: But, is it really more transparent now? I mean, I think it was transparent when it was on the MLS. I, you know, I think, I think that the, taking it off that, I can understand getting rid of clerical operation, but, Um, you know, they, they just made things, they, they, they muddied the water, I think, for the consumer.

TRACY HAYES: Um, well, they wanted the buyer to know. Right? In most cases, the seller knew that five, six, whatever percent was going out of their budget. Proceeds the buyer didn't know squat and now it forces the buyer now What the coming off the mls forced it they could have just said no you need buyer broker agreement in my opinion, right?

TRACY HAYES: And 

ROSE ALBERRE: i'm sure you know this tracy other states have been doing the buyer broker agreement for years I don't know what the number is, but it's like 20 or something [00:10:00] states that have been doing it for years without any issues um Commercial we all know the commercial sector. This is how they operate. So it's not You It's just going to take some getting used to.

ROSE ALBERRE: It's a different way just taking, yeah, we just have to get used to it. And it's going to be bumpy 

DAVID: while, while we find that new normal. 

ROSE ALBERRE: That's it. 

DAVID: I do anticipate a bumpy few months while, while people figure out what are best practices. How do I have the conversation with the seller on the listing side?

DAVID: How do I have the conversation with my buyer on the buyer side? How do I mend it if I find a house that I agreed I was going to take two, but now they're offering three and now I'm going to go to amend it with my buyer and the buyer is going to say, wait a minute, that 1%, you know, what's my cut of that?

DAVID: Things like that. There's just going to be a lot of, um, how you handle it. Yeah. That 

TRACY HAYES: is one of the questions that several people, you know, what is a, a simple and compliant way? I think to me is just telling the truth. Just be straight up 

DAVID: [00:11:00] Yeah, 

TRACY HAYES: just be straight up this is the new requirements now, I need to let you know what I am being compensated here and This will be an ongoing discussion.

TRACY HAYES: Yeah, but there 

ROSE ALBERRE: is there are traps for those who are not Staying in the loop who are not Watching the webinars who are not reading the materials that are coming out and one thing if you can take away any One thing from this podcast, it is you never want to be in a situation where you present an offer without having either a signed compensation agreement, and there are two forms, one between The seller and the buyer's broker and one between the seller's broker and the buyer's broker.

ROSE ALBERRE: You have to have that form signed either before you submit an offer or when you submit the offer. You want to make sure there's a term in the offer that makes it contingent on the seller broker. Okay. Signing the, the compensation agreement form [00:12:00] simultaneously with the offer or otherwise the contract is deemed null and void because if you submit an offer and the seller accepts it and they don't accept the compensation agreement, you lose all that, you know, there's, yeah, 

TRACY HAYES: you're 

ROSE ALBERRE: out, you're out, 

TRACY HAYES: um, 

ROSE ALBERRE: I mean, your buyer will, will be paying it 

TRACY HAYES: before I forget.

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ROSE ALBERRE: that's a pink one. So that means I get it. 

TRACY HAYES: So, well, I still haven't got my landly lit. So I was promised by Britt, but I haven't seen it yet.

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TRACY HAYES: Um, uh, back to what, back to what we were talking, the, the last statement, I'm sorry, cause I had a question I was going to do, but I didn't want to forget. A word from our sponsor. About the 

ROSE ALBERRE: compensation agreement and the, 

TRACY HAYES: Um, making sure you have that signed before, uh, 

ROSE ALBERRE: before or making your offer contingent on it being signed prior to the effective date of the contract.

TRACY HAYES: Right now, one fact that's there as well with the buyer's broker agreement. If you agree with your buyer, your consumer, that you're only going to get 2 percent and the seller's offering three. Uh, you either need to have to amend that or you're going to take the lesser of the, of the two. 

ROSE ALBERRE: A hundred percent.

ROSE ALBERRE: So one of the big new practice changes is you have to have a buyer broker agreement and the buyer broker agreement has to have certain elements terms in order to be in compliance with the practice change. One of the things is that there has to be a disclosure in there [00:14:00] that the compensation that you receive from any source cannot exceed the amount.

ROSE ALBERRE: that is agreed to or authorized by the buyer broker agreement. 

TRACY HAYES: And you can't have a range no range no ranges 

ROSE ALBERRE: It cannot be what's 

TRACY HAYES: that lawyerly word or lawyerly phrase. 

ROSE ALBERRE: Well Objectively, it has to be objectively ascertainable 

TRACY HAYES: Yes, 

ROSE ALBERRE: it cannot be open ended The settlement agreement actually gives an example saying that it can't be whatever amount the seller offers.

ROSE ALBERRE: It cannot be between X percent and Y percent. Um, it can't be up to an amount. It has to be objectively ascertainable and not open ended. 

TRACY HAYES: Um, and objectively ascertainably just means any simple person can look at that document and say, you're getting paid X percent, either a flat fee, right. 

DAVID: Or a percent, 

ROSE ALBERRE: right.

DAVID: You 

ROSE ALBERRE: can have a range of services. So I think there was some confusion because some people said, [00:15:00] Oh, well, I saw an attorney on a podcast say you can do a range. If you, you can say, I'll get paid 3 percent for doing X, Y, and Z. I'll get paid 2 percent for doing, you know, A, B, C. So you can spell it out. So that way they know, okay, if I ask you to do this, I'm going to get I'm going to have to pay you this.

ROSE ALBERRE: So 

TRACY HAYES: that was 

ROSE ALBERRE: the confusion, I think, with the range. But you cannot say between 3 and 5. You have to know what it is. 

DAVID: And for now, I think everybody is, um, using the far bar. By brokerage agreements. Fur bar. Fur bar. It's a debate we have internally. For Florida. Is it fur bar? When I came on the scene, it was fur bar.

DAVID: Now it's fur bar. 

ROSE ALBERRE: Teaching an old dog new tricks. Right. 

DAVID: Um, but I think you're going to see a lot of brokerages go to their own BBAs. Mm hmm. Um, for various reasons. I mean this, the, the, the one that Florida Realtors came out, they did a great job with their forms. I think overall they're very good. They're, they're, um, They're very [00:16:00] broker friendly and I think that may scare some of the consumers away.

DAVID: They call them consumers now, not buyers anymore, the consumers. So I think you'll see some, uh, some of the large brokerages draft their own BBAs. We, we, we did, Rose, uh, was a big part of drafting a BBA early on for some brokerages and I've had a lot of brokers reach out to me and say, we like your form better.

DAVID: Um, Um, Uh, From, From, What do you have? Um, 

TRACY HAYES: Um, From, the broker wants or doesn't want versus the FAR Bar? 

ROSE ALBERRE: I mean, there were some, there were some, um, more protections, um, it made it, some, there's some parts in the buyer broker agreement that the Florida Realtors put out, um, that a lot of brokers were just like, that's not for us, we, we don't want that.

ROSE ALBERRE: I, I [00:17:00] think one of the sections was, um, they can, enter into a new agreement with, with a family member and you can be kicked out after months of months of work. Um, let me 

DAVID: some, some of the brokers who talked to wanted to be a little more broker friendly, but a lot of them have said no software. Soften and make it a little more consumer friendly.

DAVID: Right. And because at the end of the day, do you really want to work with a buyer that doesn't want to work with you? Right. 

ROSE ALBERRE: But, but there was a section for the in the protection period, that last sentence. It says that, um, so they can wait out the termination period and then once it expires, it. I have my mom or my brother in law write an offer and then my agent is out of the picture even though they showed me the property.

ROSE ALBERRE: Because it says that consumer's obligation to pay broker's fee ceases upon consumer entering into good faith, good faith, exclusive by a broker of the image with another broker after termination date. So I show them that property. But now this is over. You got two weeks left in your agreement. I'm under a contract with my brother in law.

DAVID: Or a day left. Yeah. 

ROSE ALBERRE: Yeah. Yeah, you could be a day 

DAVID: away from the [00:18:00] termination agreement. So there, like I said, it, it's going to take some time for the dust to settle. And every day something new is coming out. I don't know, Rose, if I even talked to you about this, but, um, there are a couple brokerages in I think it's Michigan that filed a lawsuit yesterday.

DAVID: Did you see that one? Um, uh, another antitrust, uh, suing MLS saying, you're forcing us to be, to be realtors, to be members of the National Association of Realtors in order to access MLS debt. And that's anti competitive. Um. So, I mean, there's going to be, and you've got some states that are pushing back like Colorado that are saying, uh, we think that having, forcing a buyer to sign a buyer brokerage agreement is, is not in the best interest of the consumer.

DAVID: So I think you're going to see some states push back, you're going to see more lawsuits out of it. 

TRACY HAYES: Massachusetts has got one. Penn is their MLS. They've got one going on too. Mm hmm. Yeah. 

ROSE ALBERRE: Um, but going back to your question about [00:19:00] another provision in here that they did not, that some brokerages didn't like was the Florida Realtors Form says that you can pull the consumer's credit report.

ROSE ALBERRE: And a lot of them were like, yikes, you know, we don't want to do that. So what my response to them was, well, just strike through that and let them know, look, I'm not going to pull your credit, you know, so it could be a talking point like, look, this is the Florida Realtors Form. I'm not going to do this and you can strike through that.

ROSE ALBERRE: I 

TRACY HAYES: heard then, now you're saying it and I'm thinking like, why? Cause you're not getting their data verse social and all those things like I would as a lender. Why would, even? I don't know why they put that in there. Yeah, why that would even? 

ROSE ALBERRE: I mean, I think sometimes when you wonder if, does this person really have the funds to see, you know, a multi million dollar home, you know, it gives the, 

DAVID: Yeah, 

ROSE ALBERRE: maybe it gets the conversation 

DAVID: started, but 

ROSE ALBERRE: and when you go see homes, or I can require you to 

TRACY HAYES: be pre approved, right?

TRACY HAYES: That's because that's really what they're saying get approval. Yeah That someone's looked at your stuff. All right, um this Kind of tailoring off of we've got some different forms here and I think [00:20:00] these different forms are also going to tailor into One of the big discussions we've been talking about is the open house situation But we have three we have the the property or pre touring agreement or property pre touring agreement There's actually a showing agreement and then the exclusive buyer broker agreement Rose, could you just kind of break down a little quick on what?

ROSE ALBERRE: So, there are, yeah, there's the buyer broker agreement, there's four different versions released, it's just the brokerage relationship that's different on that. I, that's the one that I'm the proponent of, I think, and David and I differ on this, but I think that the buyer broker agreement, it protects the parties better, um, The thing I would caution you about that is don't make your location area too small, you know, because if you just do it to one subdivision, but then they find a house across the street, just be careful with that and don't be vague with it, don't say, um, you know, south of I 10 or the Gulf Coast, you know, so just be careful when, when [00:21:00] filling it out, but the buyer broker agreement, that is the one that, You know, if you watch the videos, they're saying that's the one that we're married, but you can still use it to be like a showing agreement or a property pre touring agreement just by limiting it to one property.

ROSE ALBERRE: If you are in that situation where one 

TRACY HAYES: week or one week, you can 

ROSE ALBERRE: limit it to not scare off or intimidate a buyer, but I don't think it's intimidating. I don't know if it's because I'm used to looking at agreements, but it's not intimidating. If you. Present it so that it's not intimidating, you know, um, so I think agents really need to work on their presentation and I know brokerages in town that have been preaching about the buyer broker agreement for years for years.

ROSE ALBERRE: They've been teaching the preaching the buyer broker agreement and training their agents on how to present it once you understand it and are able to present it. It's not, it's not intimidating. So I'm a big proponent of using that. In every situation, the, there's also the showing agreement that you [00:22:00] mentioned, um, it's very similar to the buyer broker agreement, not as robust, it doesn't have as much teeth, not as many protections, um, but it complies with the practice changes, it checks the boxes, so you can use it, there's nothing wrong with it.

ROSE ALBERRE: I prefer the BBA. 

DAVID: And then you've got the property free tour agreement, which is like going on a date then. 

TRACY HAYES: Do you, if you're, if you sign the pre But in my 

ROSE ALBERRE: opinion, that one's a little ambiguous. If you, 

TRACY HAYES: if you sign the one nighter agreement 

ROSE ALBERRE: I'm not a one nighter type of 

TRACY HAYES: person, I guess. And the next morning you're like, hey, let's go to Vegas.

TRACY HAYES: Yeah. Do you have to advance that to the full fledged exclusive buyer broker agreement? It 

DAVID: depends. The property pre tour agreement has a, has a range, a date range in there as well. At some point you, you, you're going to want to transition, um, once you're comfortable. But I can see, I mean, to Rose's point, yes.

DAVID: Are we scared away from the BVA as lawyers? No, but there are definitely things as a lawyer I'm also going to strike through and want initialed if I'm the consumer. Sure. So [00:23:00] the pre tour agreement is a little bit. intimidating for certain buyers that maybe are nervous about this. And you say, let me show you houses through the weekend.

DAVID: See if you like me and odds are, if you're a good agent and you know what you're doing after the weekend, they're going to be like, I really like working with you. Okay. I feel a lot better about this now. And you say, great. So this BBA, we just got to do it in our settlement. Explain the reason behind it.

DAVID: Everything you've got your, uh, you've got your elevator pitch about why they should work with you. Right. Which hopefully all the buyers agents have by now. So, and then you, and then you transition into something like that. So I think it's just a matter of knowing who you're working with and reading, reading the audience.

TRACY HAYES: It's a good transition for those who are, you know, asked the question, cause there were several agents asked the question, what's the best way to simply and compliantly explain this? Maybe you start with the. 

DAVID: Yeah, I think it just depends on how you meet the person. Was there a prior relationship? Did you just meet them?

DAVID: You know, casually at a coffee shop and they're not quite ready to commit to you yet and you don't want to throw a four page [00:24:00] form in front of them and start. I just think it's gonna be a case by case basis. If you can get a BBA signed right off the bat. Great. If all you can do Get the pre tour agreement of all if as an agent, that's what your comfort level at this particular time checks the box I don't think there's anything wrong with that.

ROSE ALBERRE: I would say check with your broker. That is my final answer It would be check with your broker but of course I am gonna say to that the pre tour agreement does have a provision in here that says if If you wish to work with broker to purchase a property broker may ask you to sign a separate agreement Detailing the party's responsibilities during the sale.

ROSE ALBERRE: So why not just do the buyer broker agreement to begin with that's my two cents Um, but of course check with your broker and it checks the boxes so it works Not my preference, all right 

TRACY HAYES: so big discussion around Uh, so we got we got these documents. We got the three different levels of agreements you can do The Open house [00:25:00] and, uh, and I'm going to kind of set the, uh, stage, so to speak, uh, open house, that person hosting, um, should, is a, is seen as a representative of the seller.

TRACY HAYES: Um, that when someone comes in, as any host would, the expectation of the industry and how real estate works is they would show the house. Um, at what point, uh, because the agents are, at what point is someone's in there and, Bless them if someone walks in and says I want to buy this house and you're there and they're Unrepresented do we start talking about one of these agreements?

ROSE ALBERRE: I think that is a great question Thank you for asking it and I would like to remind everyone to check out the frequently asked questions on the nar Um website florida 

TRACY HAYES: realtor florida 

ROSE ALBERRE: realtors website regarding the nar settlement. Um, there's a question right on point about it and it goes to [00:26:00] You know, you have to remember what are the practice changes?

ROSE ALBERRE: We have to enter into one of them is entering into a buyer broker agreement Before touring a property when working with the buyer. So now it comes to what does working with the buyer mean? Okay There's a an answer in here that says that if it is your own listing and you are providing services Um strictly for the seller someone comes in answer general questions about the property that a normal person coming to an open house asks, um, they see the property, no buyer broker agreement required.

ROSE ALBERRE: But once, and you know, it's, there's, there's a little gray area, um, but once they start asking, they're not represented and they start asking you for a contract or want to submit an offer or advice. Once you go there, stop timeout. Let's talk buyer broker agreement and [00:27:00] let me see. I think it's one of the questions Some of the questions like 

TRACY HAYES: they brought up is like, you know Someone walks into the house.

TRACY HAYES: I see it. Obviously. They like would the seller take less? Now you're starting to work with The buyer. 

DAVID: Yeah, I think anytime you're answering a question like that You're working with the buyer and you got to be especially careful if you're a single agent for the for the seller which a lot of You A lot of agents are single agents in town, and I think with the changes you're going to see more of that, not less, I think so.

DAVID: Um, but, uh, yeah, at that point you've got to stop. And depending on, single agent, my transaction, do I have the consent to transition to a transaction agent? So, um, it starts to get, um, And you know, if you're in the gray area there and what do you do when that buyer says, I love it. I want to write up an offer.

DAVID: And they're not, and you know that buyer has told you that they're not represented. Immediately it's, it's, you know, and again, depending on whether you're a single agent, you've got to, I got to get back, I [00:28:00] check with the seller. Um, you know, can that agent write up the contract on behalf of the seller and just hand it to the buyer with a no brokerage disclosure and say, hey, I'm giving this to you on behalf of my seller.

DAVID: And, you know, Hired attorney, whatever so it's just it's um, it's a it's it's a lot of a lot of great. 

TRACY HAYES: What would you say? Because yeah, there's that step back like okay. I gotta bring in someone else right whether Uh, or coming back with that question, would you, um, would you like me to represent you as well in this transaction?

TRACY HAYES: Yes, sir. If they don't want to be represented by anyone, that's your choice, right? And 

DAVID: can you represent them if you are a single agent? And then, right. And you don't have a consent 

TRACY HAYES: to 

DAVID: transition, 

TRACY HAYES: so. Uh, I don't have Howard Flashin in here right now, so he, I know he, he probably, and I want to ask him this question.

TRACY HAYES: So how would you transit, if you are a single agent, how would you, uh, you gotta, you got someone who's hot and ready to make an offer. Are you [00:29:00] calling another, are you calling your broker and having another agent come in from the brokerage representative? How do you handle that? 

ROSE ALBERRE: I think usually they have the consent to transition signed.

ROSE ALBERRE: You know, when, when they do the single agent, there's a consent to transition that's signed. So for when the situation, 

TRACY HAYES: they just got to let them know that I'm now representing the seller as well. Unless you have a seller doesn't authorize it. 

ROSE ALBERRE: Right. 

TRACY HAYES: Um, cause there, yeah, there is that, uh, and I want to make point cause this was a big discussion the other day, the working with.

TRACY HAYES: Versus just hey, you know telling telling about the area you're selling the house for the seller You're gonna tell them all the great things about the house and when the huh, you know You go a hot water heater was just change the roof was only three years old Those are all things that you would be as representing that the host is representing the seller 

ROSE ALBERRE: providing access to the buyer And answering general questions about the property.

ROSE ALBERRE: That's it. If you do anything more than that You need to think about by a broker agreement 

TRACY HAYES: Um I, I think this is [00:30:00] probably one of my, uh, things here, but recommending the brokers, you, you mentioned that it's up to the broker in, in, uh, previous conversations, but if the broker hasn't really start setting down some of the best practices that they want.

TRACY HAYES: The agents to go through and the agents are just going to get probably pretty confused and start running around their chickens with their head cut off like what are we supposed to the broker really needs to try to get a hold of Their their people and like this is the way we're going to do it here at this brokerage 

ROSE ALBERRE: and the florida realtors has It has all the forms.

ROSE ALBERRE: Their website is a great resource tool that everybody should be checking out. It explains the forms. There's videos that you can watch. Call your local real estate attorneys, um, for guidance, um, because there are pitfalls. You don't want to be the one who is not prepared, who submits an offer without a compensation agreement.

ROSE ALBERRE: Um, and so read the forms, watch the videos, check with your broker, call the hotline, and Call your favorite real estate [00:31:00] attorney. Um, there's things you can do. There's resources out there. Educate yourselves. Um, And yeah, check with your broker. 

TRACY HAYES: David, you've been in this a couple of decades. You've seen, I mean, there's been other changes, uh, maybe not as drastically related to this, but there have been a few others, but 

DAVID: this 

TRACY HAYES: is going to be a work through process.

TRACY HAYES: Would you agree? It's just going to take some of these forms may change. It's going to be 

DAVID: rocky. Yeah. Yeah. Yeah, it's gonna, it's, it's, it's, you're gonna see the forms change, um, as new situations arise. You're gonna see new laws passed in states to deal with this, um, so it's just gonna take some time. I just tell agents be, just be patient, just, you know, when, when problems arise, like Rose said, give us a call, we'll work through it with you, work through it with your broker, call the legal hotline, uh, if you can get through to them, I'm sure those phone lines are gonna be jammed.

DAVID: But Tracy, 

ROSE ALBERRE: can I just say, you know what I love? This settlement did not [00:32:00] prohibit sellers from paying. It did not prohibit listing agents from paying. It did not say that we can't do this anymore. So we're still getting, I mean, it's, the result is the same, the path is different. We've said that a hundred times.

ROSE ALBERRE: So there are a lot of good things that we still have. We can't negotiate it on MLS. There are other alternatives a lot. And I think some are better because now it's a private negotiation, one on one depending on the terms of the author, the offer, the strength of the offer. This is better for consumers.

ROSE ALBERRE: This is better for buyers. This is better for sellers. I might be a minority here and I don't mean to upset people But there's a lot of good that came from this lawsuit that people are not thinking about because they're just stressed out about We have to do things different now, but it's not necessarily bad or 

TRACY HAYES: worse could as a 

ROSE ALBERRE: If you're educated as as a 

TRACY HAYES: group um [00:33:00] To Yeah, be better at the listing appointment.

TRACY HAYES: You can take a lot of weight off a lot of people by being really good listing appointment and explaining that up front that, Hey, we're going to do this. And we're going to do this for the buyer's agent because it'd be really good versus just saying, Hey, because I, we know a lot of, uh, sellers did not know that half of their, whatever was roughly half all the time is going to the buyer's agent.

TRACY HAYES: They just didn't even know that. You know same way the buyers did not know the buyer's agent was getting paid that way and we're just we're just putting that out on the street 

ROSE ALBERRE: 100 percent and when you are in your listing Um, I didn't know if we were going to do some do's and don'ts but um when you are in that listing appointment one thing you don't want to do is Suggest to a seller that they must Make a certain offer of compensation or no broker will show your house.

ROSE ALBERRE: Do not do that You You know, there are other ways that you can [00:34:00] say that, you know, with your experience in the real estate industry, you know, if you set the price here or if we want to, you know, you're always looking at the net and we at Landmark, we have a net sheet where we could give you three different price points so you can have, um, an informative conversation with your seller and letting them know, look, Who cares what we do, how it gets divided?

ROSE ALBERRE: We're looking at the net here, 

DAVID: okay? 

ROSE ALBERRE: And that's, you know, it's all about making them understand. I don't think they really care who gets paid as long as they understand. What's coming home and the check is the same, you know, 

TRACY HAYES: right. Well, yeah, I think, uh, One of the phrases and says what you focus on they will focus on and if you focus on this But you know david in your experience, you know 20 plus years in northeast florida or really in real estate in general the price that's been driving for these homes have This was all part of that structure that they know that certain percentage is going over here and certain percentage is going over here and some closing cost and, [00:35:00] and, you know, the sellers, uh, responsibilities and that sort of thing.

TRACY HAYES: These were already built in. So I think, would you agree, like, as a listing agent in the, by having that mindset, That, that, that price has already built this into it where, because I think there's this miscommunication with the DJ thinking that housing, we're, we're pumping up the values of rights because of this.

TRACY HAYES: And, 

DAVID: but I mean, time will tell, but I don't think that it's going to change that much. There might be a little compression on, on buyer's agent side commissions. But, um, I think like anything else, it's going to be market driven. It's going to be supply and demand. And when it's a seller's market, you'll see sellers say, I'm only paying 2%.

DAVID: I'm only going to pay you two. So four. And then when it's a buyer's market, you're, they're going to say, man, you're, you're really worth it. I'm going to pay six, three and three. So it's a conversation that just has, we had, it's driven by market forces. It's going to be how good that agent is at selling themselves.

DAVID: I, we've been preaching to agents when we've been talking to him over the last few months. You have to add value to a transaction. I don't care what the [00:36:00] field you're in or what you do for a living. If you, if you add value, you will always have a seat at the table 

ROSE ALBERRE: and you do add value very much. And we see it.

ROSE ALBERRE: We know the agents that add value much more than some that don't. You know, we, we see the agents that are going and saving the day at the last minute because they had a contact somewhere and they were able to. to get, get the situation resolved and fixed and get the appraisal and order the inspection.

ROSE ALBERRE: So you Clean out garages. 

DAVID: Yeah, so as long as you're Clean out garages last minute. You know, there's a lot of anxious, or agents that are very anxious about this. And I understand because it's the fear of the unknown, but we just keep telling them if you add value, and you do add value, You just need to convey that how you add value, why listing agents have been conveying their value for years.

DAVID: That's why the real estate 

TRACY HAYES: excellence podcast exists to come on and express your value. They're not 

DAVID: top producing agents by accident. They know how to walk into a living room and tell a seller why they should list and sell their house with them and they will get them top dollar. So it's [00:37:00] just something new that buyers agents now have to sit down with a buyer and say, this is why I'm going to help.

DAVID: This is how I'm going to help bring value to you. This is how I'm going to help you get, uh, the price at look, maybe lower than, than market value than what you think. And I bring, you know, the contacts that I have in home inspection and survey and lending and all these things that are going to help add value to your transaction.

DAVID: So it's just going to take some getting used to on the part of buyers agents to do that. And there are a lot of buyers agents, uh, frankly, that did not add a lot of value. And I don't think they'll be in the industry much longer, right? And that's not a bad thing for all the agents that we deal with that and that you talk to on your podcast that are professionals and that are in this seriously for the long term, not trying to do it part time.

TRACY HAYES: Uh, one of the things that Florida realtors put out is they don't expect you to do it for free. This is not, this isn't, the settlement agreement was not, you should, you need to bring about, [00:38:00] but there comes a challenge in, um, with fair housing and so forth because we know there's buyers out there that don't have the, you know, we've got to get concessions or they're using down payment assistance and so forth.

TRACY HAYES: And that going and asking for, whether it's in the offer, asking for, uh, um, uh, buyer agent assistance. Compensation or the listing agent when you're listing a house, you know, you know in this area 200 250 You're probably gonna those are first time homebuyer homes that you need to understand Who is your buyer and what most of them coming to the table with and they generally don't have a lot of the extra cash to pay The buyers agent pay their buyers agent and covered all the closing cost and if any down payment that they have That understanding the clients that you're working with.

ROSE ALBERRE: Yeah, I think A hundred percent. They're saying the opposite. You're not working for free Here is a buyer broker agreement showing all your value what you're worth And that you will I mean [00:39:00] they're guaranteeing you to get paid By having a written agreement and don't just put it in the contract because the contract is between the buyer and the seller So we were talking earlier this morning too that we are recommending that agents memorialize The agreement in the purchase and sale agreement, you know, in the contract, but you always have to have that separate compensation agreement so that if for whatever reason.

ROSE ALBERRE: Um, you don't get paid. The contract's not going to protect you because you're not a party to that contract. You have to have that compensation agreement with either the seller or the listing broker or the buyer, whoever's going to pay you for you to be able to enforce it. 

DAVID: Yeah. And please, as a, as a best practice agents put it in the purchase contract.

DAVID: So if you are a buyer's agent and you know, you're getting 2 percent from the seller and you're going to get 1 percent from the buyer in the closing cost section for the buyer, Put the dollar amount payable to XYZ brokerage and in the seller closing cost amount, put the 2 percent [00:40:00] payable to XYZ brokerage.

DAVID: That way it's in the contract because the situation and it's going to happen is where we're going to have a selling agent say, Oh, I'm only getting two from the seller and I've got a BBA with the buyer for 3%. So charge 1 percent to the buyer. And it's not going to be in the contract. And then we're going to tell the buyer, Hey, we told by the selling agent to put this fee on the buyers.

DAVID: It going to say, I had no idea. They didn't explain that to me. I don't have the money. I'm not paying it. He didn't do a good job. Take it off the alta. And then us as the title company. Now that puts us in a difficult position because it's not part of the contract. If the buyer didn't agree contractually to pay for it, that's a separate dispute that they have with the selling agent now.

DAVID: And they've got to go look at the terms of the BBA and the dispute resolution and do that. But, you know, if we're, uh, if we're instructed by a buyer, take that off. It's not in the contract. I don't authorize it. We're going to take it off the ALTA. We don't have a choice. We, it's not part of the [00:41:00] contract and we're not going to hold up the closing for it.

DAVID: We're going to look at the selling agent and say, you need to, you've got a dispute resolution section and you've got to go, you got to go do yourself. 

TRACY HAYES: So let's slow that down. So everyone, I was just going to 

ROSE ALBERRE: ask you, this is being recorded, right? Yes. Okay. So whoever's watching, please rewind and watch that again.

ROSE ALBERRE: Cause if you are going to take anything else other than the first thing that I said, you know, if you're going to take anything, make sure you have the compensation agreement signed. Before or simultaneously with your purchase and sale agreement offer being submitted make it contingent And now the second thing if you don't take anything else away from this Um podcast is what david just said so just rewind it and watch it again.

ROSE ALBERRE: It is very important what we're telling agents to memorialize the compensation in the purchase and sale agreement. Because if we're in a situation where we're ready to close and we're, we sent out the ALTA, because we always do it at Landmark Title, we always send it in advance of closing and the buyer's looking at it, whoa, I did not know I [00:42:00] was paying 1%.

ROSE ALBERRE: Um, we are in a position where, you know, we don't want to tell you that we can't do it, but they're going to be in default if they don't close. So most likely we will close and you will not get paid and you will have to pursue a cause of action if you want to The situation, the 

TRACY HAYES: situation that was the buyer broker agreement, they put 3 percent for this example.

TRACY HAYES: Mm hmm. The seller was only going to pay 2%. So you got 1 percent still hanging out there that the buyer is still responsible for. They either obviously can have that conversation with the buyer and the buyer might say, yeah, no problem. I understand. I'm going to pay you that 1 percent or you amend the buyer broker agreement.

TRACY HAYES: Would you agree? Sure. You could do that. 

DAVID: Or you put it in the purchase contract. On the buyer closing cost section, that they're paying the 1% and then it's part of the contract. And if the buyer complains about it, we say, I'm sorry, it's in the contract that you're gonna pay 'em. Mm-Hmm. , just like it's in the contract that you're gonna pay the lender's title policy or the note stamps or the survey.

DAVID: Right. Right. It's part of the contract. We and, [00:43:00] and it, and we don't get in that situation where a buyer says, I don't care what that BBA says, it's not in the contract. Take it off. Yeah. 

ROSE ALBERRE: Help us. Help you , please. . 

TRACY HAYES: Um. Uh, Oh, the one thing it was, um, from what I understand, the MLSs are going to, uh, they're taking out the compensation part in there.

TRACY HAYES: They are going to add where you can put in concessions, but you are not allowed to say in the concessions that were anything about anything going to the buyer agent, 

ROSE ALBERRE: right? So I'm glad you brought this up because seller concessions cannot be conditioned. On payment to a broker, okay, so they cannot be conditioned on it.

ROSE ALBERRE: But if you put a seller concession In mls, you're putting it out there for every single buyer And they can use it for whatever they want um So yes, [00:44:00] that is an option. You can put it out there if you have sellers that they want to do that They're more than welcome to but it's going to be on there for all the offers that come in You Um, it's not the way that I would recommend doing it, but it's an option.

TRACY HAYES: So, what's common, um, and there's lenders in town that do it, that they, there's, they offer concession for either to buy down the rate or compensate their closing costs. The buyer broker comp is not part of. Closing costs, or settlement costs. Am I correct? This question just came to my mind. 

ROSE ALBERRE: You're, you're correct on that, and there are some frequently asked questions that talk about this.

ROSE ALBERRE: Um, and I, I believe the VA and FHA also came out with guidelines that are saying that they're not going to count it. Toward the maximum allowed. 

TRACY HAYES: Right. But I'm just saying, you're When they Because they can put in their advertisement that, hey, you can buy down You can use this money to buy down the rate or just pay [00:45:00] for the closing cost Yeah.

TRACY HAYES: or a combination of. But that doesn't mean that money's supposed to go to the buyer's agent. 

ROSE ALBERRE: It doesn't mean it, but you can use it for that. You can. You can. 

TRACY HAYES: Okay. 

DAVID: But like Rose said, I mean, that's not the way that I would recommend that it be handled by the, uh, A 

TRACY HAYES: topic that was brought up at the mastermind on Friday was, um, you know, I, I, I know I, I have my personal opinion on this.

TRACY HAYES: Um, I will, I will clearly state it having worked with a large builder in town and it's not this builder that particular that I'm talking about, but, um, in, in incident, one of the questions, um, actually by a very prominent agent, uh, out at the beach. She sent me the question because it was a Facebook. Can a listing agent require to see your buyer broker agreement to show you the house?

TRACY HAYES: No. I wouldn't think that's a very good practice. I don't. 

ROSE ALBERRE: Whew. Well, here, I don't, I don't know where 

TRACY HAYES: you're stated, but I don't [00:46:00] think that's good practice as a business. Well, here's, I think you 

ROSE ALBERRE: gotta remember the code of ethics. 

TRACY HAYES: Mm-Hmm. . 

ROSE ALBERRE: And you have to work as a listing agent for your seller's best interest.

ROSE ALBERRE: So is it in your seller's best interest to not show a house? 

DAVID: Right. I mean, it put you at a disadvantage because now you're seeing it could be an ethics that buyer is paying their buyer's broker. And I, I don't, I, I, I just. I can't imagine the listing agents going to do it. I guess we're about to find out but um, the the buyers Uh, the buyer broker certainly can say no i'm not doing that.

ROSE ALBERRE: Yeah, I would definitely defer I would push back broker the ethics hotline This to me does not sit well, and I would not think it would be allowed under the ethics rules to condition showing a house On you showing a buyer broker agreement 

TRACY HAYES: Um, again, discussions, uh, I think it was probably on Friday as well.

TRACY HAYES: Um, You have that situation where you because [00:47:00] I think what they're doing is trying to take advantage of a weak buyers agent Who's not like say like I'll do this for 1 percent so they see that 1 percent Oh great We'll pay you 1 percent no problem instead of they want it. They want to expose the cards they want to see the cards before they lay down their cards, so to speak and I just where my thoughts go in here is should they Put in that buyer's broker agreement.

TRACY HAYES: Hey, um, you can get paid up to 5 percent If the seller's willing to pay All of it or three percent of that 

DAVID: But you can't because again, that's not objectively. That would be a range. Right. Right. That would violate that. You wouldn't 

TRACY HAYES: want it open ended. Now, the one thing, the one suggestion I was like, well, why don't, why don't you put in there, um, if this, because, uh, brought up builder.

TRACY HAYES: There's a builder in our region who, uh, thing. They want to see the buyer broker agreement first. To me, it's a lazy builder who's unwilling to go see what the other builders are doing and be competitive. They want the cards to be exposed to [00:48:00] see if they could save themselves a couple bucks. Um, the, could they put in that agreement?

TRACY HAYES: If it's an existing home, I'll pay you 2%. If it's a builder, because of all the incentives, I'll pay you 2%. you know, I'll allow you to get up to 5%. But because in the, in most of these agents are talking about that, they're going to, they're willing to take, in most cases, the lesser of the two of what the seller is willing to give them, the builder or seller, right?

TRACY HAYES: They're at the set. If they're, they asked for three, they said, I'm going to pay three, but they only got two, most of the agents are like, they'll just take the two and they'll then, you know, put an addendum to buyer broker agreement or not even asking for the difference because they, they're wanting to put that in there.

TRACY HAYES: So 

ROSE ALBERRE: brokers have asked us for language. And we provided it to them with a disclaimer that we really don't know whether it would pass DOJ scrutiny or be in compliance with the practice changes and [00:49:00] MLS policy. But we provided language to certain brokers that says that, um, broker will be paid or a bonus offered in the amount of, so it's objectively ascertainable, it's not open ended, 10%, whatever, 10, 000 bananas, I don't know, whatever, whatever they want to put there.

TRACY HAYES: You're listening to Patty Ketchum too much. 

ROSE ALBERRE: Um, you know, and we say that it'll be paid from the owner, owner's broker or builder. However, such bonus paid to brokers shall not be due from or enforceable against consumers. So we're letting the consumer know, okay, look. We're not going to come after you for this But we are you are authorizing us to get a bonus from a builder In the amount of 10 of the purchase price.

ROSE ALBERRE: We're not going to come after you for it But if we do get it guess what we're going to credit you for the amount that you said you owed us in the preceding paragraph It's a win win. I [00:50:00] don't see 

DAVID: right 

ROSE ALBERRE: how This I mean this benefits the consumer, you know, um, but You We are giving it with a disclaimer and deferring them to their broker on whether or not they should use this in their, in their agreements and calling the hotline.

ROSE ALBERRE: Yeah, I mean a 

DAVID: builder who's willing to pay a bonus, how is that hurting the consumer? It's not hurting the consumer. They're willing to pay it. They're going to pay it no matter who showed up. Well, I 

TRACY HAYES: would think in the DOJ's minds, they're jacking up the price to, that's what they would think, in my opinion.

DAVID: But not if the builder's willing to do it. I mean, they're saying, we'll do it. We want to sell this house so bad, we've got ten houses sitting on this subdivision, we need to move them. 

TRACY HAYES: Um, if you, uh, I'm going to put you on the spot a little bit. And you could say, wonderful comment if you don't. Uh, because thanks for doing 

ROSE ALBERRE: it to him, not being in my, he was looking at you if I No, he was looking at you.

ROSE ALBERRE: I thought, yeah, I'm looking 

TRACY HAYES: at David , in my opinion, if I was. Some influencers say at Nefpa, I would call that builder and say, dude, you [00:51:00] don't want to do that. These agents are under enough Scrutiny right now asking for their buyer broker agreement is just gonna create animosity. 

DAVID: So, you know that that is a fact That's not a hypothetical that you know a builder that is asking for that was 

TRACY HAYES: stated in a room with 40 other realtors Wow 

DAVID: Yeah 

ROSE ALBERRE: Matt, I don't know why it should matter.

ROSE ALBERRE: Why should it matter? Well, 

DAVID: because they're true, because what Tracy said, I mean, they want to see that you were only, uh, that you were doing it for 2 percent and they're offering three and now they know they can save a percent because you agreed to two. Yeah. Yeah. I think I really, I don't, I just don't see that catching on.

DAVID: Um, you know, I, I hope that there's more of a spirit of cooperation and I think, uh, I don't know which builder that is. And you don't have to tell me. We know no 

TRACY HAYES: one mentioned it yet, but I forgot who it was, 

DAVID: but you know, everybody knows what one of the major national builders did a few years ago during COVID right.

DAVID: Almost slashed [00:52:00] commissions to zero, if not zero. So this goes back to my early comment about things being market driven somewhat. Right. But. Um, I, you know, I, can they do it or should they do it? Uh, there are two different questions. Uh, they're like, rose said there may be an ethical violation there that, that I'm not aware of asking.

DAVID: Mm-Hmm. for that. Well, 

ROSE ALBERRE: you know, there's no legal requirement to disclose it. Right. If anything, it would be to not disclose it because it's a private agreement between the parties, the brokers, and, you know, I authorization to disclose it. I think 

DAVID: the builders, and just to address this specific one, I think they.

DAVID: advertise what they're paying in a co operative commission. So I think you'd have time to amend your BBA and say, sure, here it is. I saw on your website that you're paying to, cause I think they're all going to advertise it. 

ROSE ALBERRE: They'd be crazy not 

DAVID: to advertise it somewhere. So you could always adjust it real quick and send it.

DAVID: I see it being a problem more on the resale side, but sorry. I 

ROSE ALBERRE: think I prefer your. It's a good way of doing it, Tracy, of putting in there. If it's new build, it's 10 percent [00:53:00] and then you're covered. Right. Yeah. 

DAVID: But if it's a, if it's a resale and you've got a listing agent, if it's a resale and you have a listing agent says, I got to see your BBA before you show my property.

DAVID: You say, what are you paying? What in Coburg commission? And, you know, maybe they advertised it on their website, maybe some other way. And then again, you could always modify your BBA to increase it to that amount and then say, you know, sure, here it is, or here's a new one that signed. I, I just don't think it's going to be the norm.

DAVID: I really hope not because it's hard enough out there without agents coming at each other like that. And, and, and, and I think 90. 5 percent plus agents work really well together. There is that 5%. I think agents know who they are and, um, but I hopefully there's, well, I 

TRACY HAYES: think, I think you enter, you could think of, think about it this way.

TRACY HAYES: If you asked me, you're listing the house and I have to show you my buyer's broker agreement just to see the house and my buyer's broker agreement. [00:54:00] Wants too much then you're willing to you know, whatever, you know, whatever you think you're I don't know what you think you're getting into You could what are you gonna say?

TRACY HAYES: You can't see the house. You can't make an offer on the house Now you got a fair housing violation, right? 

ROSE ALBERRE: Right? Yeah I like the idea and that's why I keep going back to the pie slice because That's a forum where you can go And have what the whole spirit of this settlement is of negotiating one on one Per Property per Um offer, you know, it's a term that should be negotiated.

ROSE ALBERRE: It's a negotiable 

TRACY HAYES: Rosa pie slice t shirt

TRACY HAYES: Um, I think we might've answered this question before, but I just, uh, um, I can't remember if it was pre show, but, uh, very affluent agent here in town. She feels she's confident that the seller will pay her commission. Can she put zero? I think we answered that question, or leave it blank on the buyer's broker.

TRACY HAYES: There has to be something in there, 

ROSE ALBERRE: whether it's a 

TRACY HAYES: dollar amount or [00:55:00] percentage, something. No, 

ROSE ALBERRE: per the practice changes, you are not allowed to get paid. Anything more from any source than what is disclosed and authorized in the buyer broker agreement. So if you 

DAVID: put zero, zero is your number. That's 

ROSE ALBERRE: all you're allowed to do.

DAVID: You'd have to modify, you'd have to amend the buyer broker agreement to increase it and then show the house and write the contract. And that certainly could be done. 

TRACY HAYES: Uh, Rose, you have the exclusive buyer broker agreement. 

ROSE ALBERRE: I do. 

TRACY HAYES: Um, and we, uh, there are some agents that were confused at the bottom of section 14 there.

TRACY HAYES: Uh, there's that last line, um, there where, because it's a situation where the broker actually has the listing as well as the buyer and the seller's paying the broker one thing and the buyer's paying the broker really what it's saying is for services that the broker provides the seller, they are [00:56:00] compensated separately.

ROSE ALBERRE: Exactly. So I think this, you know, again, full disclosure, this is in the acknowledgement section. The buyer is acknowledging that the broker, if it's like working as a, as you know, on behalf of the seller, that they can receive separate compensation from the owner. For the services that they're rendering to the owner, um, for which the buyer, the consumer is not responsible.

ROSE ALBERRE: So it's disclosure. 

DAVID: When it, when it first came out before FAR clarified what they meant by it, I think a lot of people were like, is, is this trying to cover the bonus, right? Is this trying to say that, that, that the, uh, the owner can give a bonus? But FAR came out and clarified, no, what they meant by that.

DAVID: Was situations where the broker is working both sides because 

ROSE ALBERRE: it says for services rendered to the owner. 

TRACY HAYES: Yeah.

TRACY HAYES: Rose and I were laughing a little bit about this, but this, you [00:57:00] know, it's, it's, if they hold their breath long enough, will these forms go away? Do you think the forms, I don't think they're going to go away. I don't They're only going to be modified. I don't want them to go 

ROSE ALBERRE: away. This is not a bad thing.

ROSE ALBERRE: You have enough 

TRACY HAYES: work. Are you paying her more now because we've got more forms? That's 

ROSE ALBERRE: right. 

DAVID: It's job 

TRACY HAYES: security. Yeah, it really is. That's, that's Um, uh, we talked about they can create their own buyer's grant. I'm just going to make sure we covered a lot of, um, the purpose of the pre, uh, when we talked about Ranger, how do you word the seller to pay compensation in the sales contract?

TRACY HAYES: How do you word a seller to pay compensations in the sales contract? You were talking a little bit, this is just clearly stated, but in the seller closing cost 

DAVID: section. 

TRACY HAYES: That's it. 

DAVID: That line there says other check it other if there's not enough room because whatever you can put it in the paragraph 20 additional terms but We would love it if every [00:58:00] single contract that we get has the Commission in the contract That's how it is in commercial contracts.

DAVID: That's how you mean used to be as Like a footnote in the NEFAR contract Um, years ago, um, sort of an FYI, informational purposes only thing, but we'd love to, to just have it in the contract. I think that's, talk about transparency, doesn't get much more transparent than that. 

ROSE ALBERRE: But just to reiterate, to make sure no one misses it, you still need a compensation agreement signed, because the contract is between the buyer and the seller.

ROSE ALBERRE: You're not a party to it. You can't enforce it. So you still need it's not in lieu of it's in addition to 

TRACY HAYES: I Think I've covered every Question, I hope I did. I hope I didn't leave any agents on a lot of you texted me I see the phone lines 

DAVID: are blowing up. 

TRACY HAYES: Well, I was thought about actually putting a phone But I'm using my phone as a camera here So I thought about what we'll just get [00:59:00] put David's number out there and let them all just text David during the show 

ROSE ALBERRE: He won't mind.

ROSE ALBERRE: I'll follow up on that. 

TRACY HAYES: Um, anything else that you could think of that maybe we didn't discuss here in the last hour, um, that, that possibly come up? I like putting it in the contract because there was a lot of agents asking about, you know, what is our, uh, recourse, right? Um, outside, but if you have an agreement and you haven't come, put it right in the sales thing.

TRACY HAYES: So, and obviously it makes it easier for the title company to disperse funds. 

ROSE ALBERRE: I did some do's and don'ts. I'm trying to go through them, see if there's anything in here that we didn't cover. But, you know, the number one do was, you know, implement the practice changes. August 17th is this Saturday. Um, save copies of your buyer broker agreement.

ROSE ALBERRE: Get with your broker on that. They are enforcing it. So 

TRACY HAYES: how did they actually come out? Like for lenders, a lot of stuff is like five years. Did they actually come out and say you need to hold on this buyer broker agreement for a period of time? 

ROSE ALBERRE: I didn't see that [01:00:00] but 

TRACY HAYES: No, 

DAVID: I didn't see a particular, I would say it's whatever you have to hang on to the other forms for.

DAVID: Whatever, whatever 475 says, however many years you've got to hang on to that stuff. 

ROSE ALBERRE: Yeah, um, and remember to don't cheat the system. You don't want to be a victim of an attorney in the next round of lawsuits, you know. Let's not get creative right now, let's do what we're supposed to do. Attorneys will send testers, like I don't know if you know about the, Americans with Disability Acts, the ADA litigation cases where they send testers to see who wasn't, who was in violation.

ROSE ALBERRE: Um They're probably gonna do that Um and send fake tester buyers to see if you are doing what you're supposed to be doing and you don't want your name In the next round of lawsuits because you're not following the practice changes Well, 

TRACY HAYES: it wouldn't surprise me Just like bank secrecy acts and so forth that it's going to come down the line that these MLSs do so many tests You The, the test, What's going on out there for agents are actually following.

ROSE ALBERRE: Yeah. Yeah. And there are fines. We [01:01:00] saw someone sent you a text message the other day where someone got fined because they put in the 

DAVID: private remarks they put in text text listing agent for the uh, city Broke by a brokerage comp 

TRACY HAYES: Well We talked a little bit about it because we talked about pie slice, but several agents talking, you know, how should they how should they communicate?

TRACY HAYES: And from what I understand you guys correct me as long as they're not using something whether it's you know Related to the MLS. They can call each other. They can text each other Email whatever however they want to communicate with the other agent on how the compensation And then obviously you can make an offer and everything's negotiable.

TRACY HAYES: Exactly. Yeah 

ROSE ALBERRE: um, what else reminder to include agent compensation terms in the Contract in addition to having the compensation agreement signed not in lieu of it um understand The florida realtors forums know how to fill them in there are [01:02:00] traps if you don't know what you're doing Especially with the listing agreement if you have questions You know, call the hotline, watch the videos, call your favorite real estate attorney.

ROSE ALBERRE: You know, be careful, because if you don't know what you're doing, you could mess up. 

TRACY HAYES: I mean, it could cost you. Well, Patty Ketchum has that video on Florida Realtors YouTube, and she gives out her cell phone number. Yes, I do! I do! Miss Florida Real Estate. I can't believe she did that. I don't know how many calls.

TRACY HAYES: This is the hotline. She's awesome. 

ROSE ALBERRE: Um, uh, what else? 

TRACY HAYES: Um, you know, if anyone has not watched it, Florida Realtors, YouTube, go on there, Patty breaks it down, shows you line by line, these documents, uh, the Exclusive Buyers Agreement, uh, what to fill out, how to fill it out, some best practices, um. 

ROSE ALBERRE: This was one that I don't think we talked about.

ROSE ALBERRE: I said don't in the don't section. Don't have a blanket statement on your website that says you offer buyer, broker, commissions on every listing. We're friendly. 

TRACY HAYES: We're friendly. Yeah. Yeah. 

ROSE ALBERRE: No, because that's not consistent with the spirit of the settlement and you don't want to have any pre printed [01:03:00] forms with the compensation filled in already Um, you know, it's really is negotiable 

TRACY HAYES: Watching Florida, Juanita at Florida Realtors, she recommended, yeah, don't, don't do that.

TRACY HAYES: And EXP, their lawyer was talking with some of the leadership there and they were, and it's expected. That's actually, you know, you don't have to put that out there. That you're friendly to the buyers. Hopefully, you're friendly to the buyers. Yeah. And this 

ROSE ALBERRE: might be the lawyer in me, but I put in here, don't put anything on social media that you wouldn't want read to a jury if you were on trial.

ROSE ALBERRE: Putting that out there. I don't know. I always like to see why I 

TRACY HAYES: started adding that to the bottom of your documents. 

ROSE ALBERRE: Remember, don't condition seller concession on use for brokers compensation. We've talked about that. Okay. Um, don't charge a range of compensation, has to be specific, objectively ascertainable.

ROSE ALBERRE: And then the last one was, don't forget to send the required disclosures. I don't think we touched on this. And [01:04:00] amend your listing and your buyer broker agreements, um, if they were signed before August 17th. So that's something if you have. 

TRACY HAYES: Very good point. So you have a listing right now, it's out there right now.

TRACY HAYES: You need. To have that adjusted you want 

ROSE ALBERRE: to make sure it's in compliance with the practice changes that the disclosures are in there that commissions are fully Negotiable not set by law And if you were using an old form of the listing agreement and there was a section in there That says that offers that it can't go on mls without there being an offer of compensation That has to be deleted And there is a form for it that you can use so just make sure You go through and check with all your listings, all your buyer broker agreements, make sure you're 

TRACY HAYES: representing your buyers agents if they're showing houses on Saturday, need to have one of the three forms, right?

TRACY HAYES: You want to make sure 

ROSE ALBERRE: that you have the current version of the forms that you're using. And that's the other thing, you know, with the Florida Realtors website, you know, Make sure you're staying on top of it. There's updates constantly. Um, so just stay in the loop and watch your [01:05:00] favorite podcast and stay, stay in the know.

TRACY HAYES: I did put it in the thing because every, every, all the top agents, I'm asking how they're, how they're handling, how they're handling this. I think a lot of them, well, it shows up in the questions because obviously a lot of the questions came from a lot of people have been on the podcast, but now all of a sudden, oh, it's midnight.

TRACY HAYES: I got to do it. Now I really have to think about it. But Landmark, you guys are out there educating. Just let's finish with that. What are you guys doing? Follow 

DAVID: us on Eventbrite, LandmarkTitle. com. We don't spam you with recipe of the week. It's It's the events that we are putting on, that we are hosting, usually at our training facility at Financial Way.

DAVID: Um, on social media we have trainings that we are doing with third parties that we're sponsoring, things like that. 

TRACY HAYES: Tomorrow, actually, for those listening live, uh, I think a representative from Reel. Brokerage, right? Yeah, real 

DAVID: is in our office tomorrow. We'll be sitting with them on Thursday. Jennifer Hendry with game changers Who's fantastic?

DAVID: She loves to train that teaching is her thing and I'm sitting with Jennifer going over [01:06:00] BBA stuff We're still doing a ton of far bar training so You know, just just follow us. We're big on education. And I said, if you give you provide value, you'll always have a seat at the table. That's why I don't ever worry about landmark and our closers and attorneys because we go out of our way to provide value, give it away for free.

DAVID: And I know that we had value. And so, you know, that's that's why we continue to grow and pick up agents. So good. 

ROSE ALBERRE: And just so you all know, landmark title has a team, a whole legal team dedicated to answering agents questions. We do not handle, my team does not handle closings. We are just support. He pays my team and I just to be available to help agents to answer questions.

ROSE ALBERRE: Anytime you call Landmark, Someone will answer the phone and help you so we are dead. We don't we don't have files My team does not have files. We are just support for for the processing teams and for the real estate agents 

TRACY HAYES: rose Would you recommend the [01:07:00] buyers 

ROSE ALBERRE: and sellers 

TRACY HAYES: recommend not only watch the florida realtor videos but come in To see at different times 

ROSE ALBERRE: multiple 

TRACY HAYES: times from different people just like the contract I 

ROSE ALBERRE: had to watch some of the videos twice to make sure I understood things, you know So the more you hear it the more it becomes more comfortable with it.

ROSE ALBERRE: You're better to explain it. And then you just get it. Yeah. You know, they 

DAVID: say you have to hear something seven times to really process it. Seven's what they say. So I found out 

ROSE ALBERRE: about this yesterday, but it's 

DAVID: seven minutes at a time. We have agents. We have agents that have come to our far bar training now to three and four times and they say, okay, I picked up on this.

DAVID: Thank you. I didn't quite get it the first time. Talk about drinking from a fire hose. If you're a real estate agent, what you've had to absorb the last few months, you need to constantly keep coming to these and real teaching BBA skills. And then the next day game changers doing it. You've got two great brokerages that are [01:08:00] just sharing open to any agent.

DAVID: You don't have to be at their brokerage. They're just, they're sharing it. We, and that's what I love about our training room is the collaboration. Among lenders and real estate agents that use it, that just have open masterminds like what Mike Rolowitz does once a month. Fantastic. And, and you have such a cross section of agents from all over.

DAVID: Northeast Florida, all kinds of different price points. Some of the biggest brokerages in town show up for his mastermind and it's, there's no sales. It's nothing. It's just, what are your pain points? What are you dealing with? How can we noodle this together? And we've got a lot of that that goes on in the training room.

DAVID: And we 

ROSE ALBERRE: have a bunch of training rooms. We have the main training room and then we have other boardrooms and We call it a war room for people to the con where the 

TRACY HAYES: conversation leads might be just one thing in this, you know, what was discussed last Friday at the Mass Friday, which I took from and researched, there's so many different things and here, you know, just a few days, I probably could have drilled, if I put it out to 100 [01:09:00] people, I'd probably have 200 questions, of different questions, because there's still questions out there, so you gotta go to these trainings and, and, and, 

DAVID: and even the forms that FAR came out with, that's their interpretation.

DAVID: of the settlement, right? Other attorneys are going to have other interpretations. So it's and, and other brokers may have other stricter or less strict interpretations of it. So it's, it's definitely not where they see weak points. One 

TRACY HAYES: person's weak point over here might be different for another attorney over 

DAVID: there because these aren't, this didn't create any new law.

DAVID: It's just new rules that NAR has and what we think DOJ could come back and say, we don't think you went far enough. We're going to go even further. So it, we still just don't know. It's, it's all about educate yourself, bring value to the transaction and you'll be fine. 

ROSE ALBERRE: I agree. I concur. 

TRACY HAYES: Appreciate you guys coming on.

ROSE ALBERRE: Thank you for having us. 

TRACY HAYES: We really 

DAVID: appreciate 

TRACY HAYES: it. Alright, those still listening, please like and subscribe. This will be on YouTube [01:10:00] as well. It's going to air live on Apple Podcast, uh, and all the other platforms on Friday, the 16th. So, you'll have it there if you want to listen to Cardi. You haven't been seeing the whole thing on the video today.

TRACY HAYES: So, I appreciate you. Yeah, feel free to call us