It depends upon what the meaning of “is” is.

Skilled magicians and lawyers are alike in their ability to amaze and baffle.  Both can take one thing that is clearly one thing, and before our eyes make it be another thing.  I could watch a magician for an hour, but a lawyer will keep me mesmerized until sunset.  With a flip of a word, a comma out of place, an interpretation of a definition of a word, lawyers turn believers into doubters with remarkable ease.

“There is nothing going on between us..” Bill Clinton had not lied under oath he contended, after facts of his relationship with an intern had become known.  “It depends upon what the meaning of “is” is.” from the perspective of the President, an accomplished attorney well versed in the art of twisting  words to alternative logical conclusions.  

Contracts used in real estate transactions are created with heavy input from lawyers.  If a lawyer wrote a sentence, there is a good chance every word has relevance. It may depend on the meaning of the word, and as long as the meaning is questionable, the outcome is disputable. 

Licensees draft contracts to an extent. Well we fill in blanks, check boxes, and within limits we free hand write some conditions the parties will rely on.  When getting an offer accepted or moving on to the next step is most important, care for proper sentence structure, punctuation, and definition of terms are at risk of being overlooked. Our license law requires we write what the client directs us to write. If we are surmising the intent of what the client wants, we’ve come up short. Getting it right is expected of us.

And when we get it wrong, all is well, until it isn’t.  Regardless of how kind, eager, committed, friendly, related, a person is to the licensee, when the source of conflict in a real estate transaction is traced to the licensee, there’s a better than good chance we’re going to lose.  As long as we are willing to spell out a person’s concerns, plans, expectations we are exposed to being challenged.   I actually like that challenge. Not everyone does and I understand.   There is no reason to fear consequences when you develop your contract drafting skills. With all of the free University education on-line, becoming trained by the same people who teach lawyers is possible. We don’t have to become lawyers to think from the perspective of a lawyer. Just be a learner. It’s worth the effort, but you won’t know it until there is a problem and it has nothing to do with your role.  Here  is a link to one resource for access to 1,300 universities. Take your pick, Oxford, Harvard, MIT. Oh, you don’t need to be a contract geek to get better at drafting, you only need to want to learn. 

Buyer Agency. The Purpose Is Not About Getting Paid

You’re a Wisconsin real estate licensee. What’s most important to you, (a) getting paid, or (b) being on the right side of the law? I know you said “B”, being on the right side of the law. That’s the reason we do buyer agency service right? No? What?

Somewhere along the way to providing buyer agency service the notion that buyer agency contracts are about getting paid took a hold of our industry and has not let go. I could be wrong, I sometimes am, but it seems that the purpose for Buyer Agency is inherent to the consumer demand that made Buyer Agency Service relevant. That demand came from two places: First, the buyer who wanted the licensee on their side for the insight the licensee could share for the buyer’s benefit, and second, the broker who wanted to fill the demand.

In the beginning, as far as  Wisconsin is concerned,  I put the beginning around 1990-91 when the first buyer agents appeared on the scene guns blazing to advocate on par with lawyers for their buyer clients. To be sure those first agents were all about getting it done for their buyer clients who they captured with a wide net of agency contracts, but taking no prisoners of sellers or their Realtors. The traditional industry responded the way traditionalist are prone to…they rose up to do battle with the Advocates. The generals rallied their troops, sides were taken, lines were drawn, and prisoners were few.  When it became clear that the Buyer Agents would not surrender the cry for help went up, “There Outta Be a LAW!” And one was made. (That’s what happened in Wisconsin where producing laws is a close second to producing cheese. In other states the Realtors cried “There Outta Be an Ethics Code”. Either way, there was a lot of crying) If the advocates would not surrender peacefully, then the law would eliminate licensee advocacy. The advocates could remain, but the behavior was now illegal or worse, unethical or both. Only lawyers could advocate  and that makes sense because they’re just better designed for such confrontational behavior. They are. It’s in there DNA. Without advocating as a reason to be, real estate licensees were offered “facilitating”. But facilitating didn’t sound like anything worth three, or four, or five, or six or seven percent of the purchase price and the industry rallied to remain “Agents”. In the end, the legislature gods gave us our unique brand of agency…and it was good, for about ten years.  Maybe I’m going deeper into this than I should, but the story was a good one…OK, back to the topic.

The purpose of the buyer agency relationship is not about getting paid, it’s all about being on the right side of the law so we can (1) do what we do best without unusual restrictions, (2) give the client a summary of services they can hold us accountable to, and (3) in the end earn our compensation.  If I’m effective at what I do, a person who has reason to trust me will want me contracted with them.  If I want to apply myself and my skills for a person, I will want to contract with them. If the first reason to have a contract is to satisfy my erroneous belief that the contract will give me a better than even chance of getting paid, my motive is way off base and this relationship is off to a rocky start.

I’m going to press the blue PUBLISH button now. If you have strong feelings, or mild ones, let me know. This is just my opinion, I’d like to hear yours.