Every seller wants the best representation possible when selling their home, but good negotiation skills which are a critical component, are fast becoming a lost Frequently Unasked Questionsart.

Speak to any agent and they will no doubt claim to sell your home for the most money in shortest amount of time—but can they all really be the best?

We’re heard sellers tell us that “any monkey” can sell a home in our market right now, and they’re probably closer to the truth than we’d like to admit. But these “monkeys” they refer to are certainly not going to get their sellers the most amount of money.

It’s tough to see the whole picture when you see homes on your block being listed with inexperienced agents, or a veteran agent who still faxes paper contracts back and forth, yet they both sell their listings for thousands of dollars over the listed price. The seller walks away happy with the results, and nobody will ever know how much money might have been left on the table.

Forget about marketing as an important variable in the outcome—for now. Let’s focus on the day offers are due. Many agents are so excited when they get 20 multiple offers they strut around their office wearing it like a badge of honor—but clearly they are merely underpricing homes rather than fighting for top dollar. Once they have dozens of offers to wade through, what they do next weighs heavily on the outcome for the seller.

One of the most disturbing and glaring differences we see is how agents negotiate on the seller’s behalf. The lost art of negotiation on the part of many REALTORS® is leaving money on the table for their sellers and dashing the hopes of frustrated buyers.

A little history…Agents have a fiduciary duty to their clients. In a nutshell, it is the highest of all duties to be had. A fiduciary duty is the highest standard of care in either equity or law. The Fiduciary duty is a legal requirement of loyalty and care that applies to any person or organization that has a fiduciary relationship with another. Think of the historical roll of a fiduciary as a similar role the Secret Service takes upon itself to protect POTUS. OK, so now you know how serious the fiduciary duty is.

Then why do so many agents seemingly treat this highest of duties so callously? Simply put, they probably don’t know any better.

If you are selling your home, a breach in this sacred fiduciary duty could cost you thousands of dollars and the same holds true if you are a buyer.

Here’s where the art of negotiation is being lost and hence the fiduciary duty being broken. It’s the agent’s job to get you top dollar for your home. Skipping steps and poor negotiation skills can come close to treading on intentional negligent conduct (or fraud) on the part of your agent.

When enlisted as a real estate agent to sell another’s real property, the bond of fiduciary is created. Fast forward to when five offers arrive on the day set-aside for the bidders to present offers. We’ve seen it many times—an offer is submitted by each of the agents and late at night we get a call that our offer was rejected, or hopefully accepted.  But when agents don’t bother asking each buyer if they can go up any higher in price, it’s tantamount to leaving a lot of money on the table. Agents are becoming increasingly lazy as they coerce their sellers into taking the highest offer rather than counter other potential buyers to see who will offer the final highest and best offer. Agents defend the lack of counter offers and asking buyers to go up in price by concluding “It’s not a fair practice when a buyer has already offered over the asking price”. Our position, clearly, this has nothing to do with worrying about the other agent’s feelings—it’s about the fiduciary duty to a client.

For example, we had buyer who made an offer on a home in Redwood City and there were seven other offers. Our clients offered $1,350,000. We got a phone call at 9:00 PM telling us our client’s offer was third highest, and that the seller had accepted a high offer—we were told over $1,400,000.

Apparently over the weekend the winning bidder (buyer) backed out of the deal and without as much as a phone call to us they accepted the second highest offer for $1,375,000 as a replacement. They never bothered to check with us because if they had, they would have learned our buyers were also willing to go over $1,400,000 to get the property. This agent cost their seller over $25,000.

But there’s a better way to do things. When we’re on the receiving side of listening to offers, we vet each one as they are presented to ascertain if this is their clients’ highest and best offer, OR if they would like to be involved in a counter offer situation should one develop. We’ll be blunt and tell the agent that their client’s offer is not high enough, and if they want to compete they had better increase their price to their highest and best. This way when we meet with our clients—the sellers—we’ve already developed the best offer to present, and counter offers are rarely necessary.

And it’s not always about the almighty dollar. Sometimes vetting the offers beforehand means asking an agent why they have an appraisal contingency with a 50% down payment. Contingencies shift the burden of the unknown to the seller and we’d of course like to see as few in a contract as possible. Asking the right questions at presentation time may mean the opposing agent can go sharpen their pencil and come back with a cleaner or better offer.

We once had an agent wax on about how we were “…shopping her offer around” to get more money for our sellers. Simply put, we unapologetically agreed.



Drew & Christine Morgan are REALTORS/NOTARY PUBLIC in Belmont, CA. with more than 20 years’ experience in helping sellers and buyers in their community. They may be reached at (650) 508.1441 or emailed at info@morganhomes.com.

You can find them on Facebook at https://www.facebook.com/Morganhomes and also find them on Twitter @ https://twitter.com/morganhomes

The information contained in this article is educational and intended for informational purposes only. It does not constitute real estate, tax or legal advice, nor does it substitute for advice specific to your situation. Always consult an appropriate professional familiar with your scenario.





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