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How to Identify the Best Commercial Tenant Agent (Guest Post by William Gary)

Posted on June 18, 2018 by Mike Kushner in Blog, Commercial Real Estate, Guest Blogger, Tenant Representative/Buyer Agent No Comments

Note: This article was originally published by William Gary, MBA, MIM on MacLaurin Williams, LLC. Permission to republish has been granted. Click here to read the original version.

How to Identify the Best Commercial Tenant Agent

Commercial Tenants and Buyers often complain that “their” supposed Real Estate Broker seems more interested in depositing a commission check than in helping them to find the right workspace at the best price. Sadly, they are quite correct. Far worse, do Occupiers understand what’s wrong when Brokers try to “double-end” their deals and pocket commission checks on both sides of the table? In commercial real estate parlance, this is aptly known as “double-dipping” and it’s not good for Tenants and Owner-Occupants.

Even Landlords and Sellers may feel pressured by their Listing Brokers, Landlords’ Agents or Sellers’ Agents to make price reductions or to accept offers that are less than what they wanted. On the other side of the table, Tenants and Buyers can feel their arms painfully twisted by “their” Brokers to pay more than they had budgeted to lease space or purchase a building.

So whose Broker is whose and what’s really going on? And why does it matter so much?

DIRTY SECRET NO ONE WANTS TO TALK ABOUT

Shockingly, in many transactions in the US, Commercial Real Estate Brokers have no (zero) legal obligation to look out for the best interests of the Tenants or Buyers they work with. However, many Tenants and Buyers are woefully unaware of this troubling fact.

Laws in at least 25 US states now allow a Commercial Broker to work with a Tenant or Buyer as a Transaction Broker, Facilitator, Intermediary, Dual Agent or Subagent. All but the last of these are pure middlemen. None of them have any legal fiduciary duties of loyalty or obedience to the Tenant or Buyer they work with.

In some states, Texas as one example, the “Client” legally is not even a Client of an Intermediary, Transaction Broker or Facilitator; he or she is merely a “Customer.”

Such Brokers might work “with” you as their Customer, but certainly not “for” you as your advocate. That’s a critical distinction. They’re definitely not your Tenant Representative, 100% Tenant Rep, Tenant’s Agent or Buyer’s Agent.

All fifty (50) states provide avenues for Commercial Brokers to double-end deals, i.e. work with both the Landlord and Tenant or both the Buyer and Seller in the very same transaction and, thereby, avoid any obligation to split or share commissions with an outside “Cooperating Broker“. A Broker (or his or her Brokerage House/Company) is legally allowed to keep the commissions on both sides of a transaction; hence the term “double-dipping“.

In such instances, detractors, including Consumer Advocates, maintain that neither a Tenant nor an Owner-Occupant is actually represented. That’s accurate because neither has an advocate nor champion truly sitting on his or her side of the table.

A Consumer, in this case a Tenant or Owner-Occupant, should not assume that his or her Broker is obligated to represent his or her best interests, and his or her best interests alone, until one has first seen a formal, written disclosure describing the agency relationship under which real estate services are being provided. Tenants and Owner-Occupants should see this disclosure upfront, too, not at the closing table as some Tenants report Big Brokerage Houses are doing. By then, it’s usually way too late to hire a 100% Tenant Rep as an advocate and start over.

Even Landlords and Sellers looking to negotiate the best commission rates, to obtain the highest levels of service and to protect their legal rights in the event of a dispute, should start the process by making certain that they fully understand the form of representation that a Broker is offering to provide them.

Is it a “Single Agency” relationship, which is the optimum and best relationship for the Consumer? That is The Gold Standard of Representation, especially for Tenants and Owner-Occupants.

Or is it a legal relationship that leaves the door open for a Broker or his or her company to double-end the deal and double-dip on commissions?

TYPES OF AGENCY RELATIONSHIPS

Agency relationships are created when one person or party agrees to act on another’s behalf, or to represent them in dealings with a third party.

Once an agency relationship is established, Brokers (as Agents) owe their Clients “fiduciary duties of loyalty and obedience.” In a Single Agency relationship, Agents are typically required to place their Clients’ interests above and ahead of their own. They do so by providing advocacy services with honesty and good faith, while carefully avoiding conflicts of interest or “self-dealing.”

There is confusion, though, because rules governing agency relationships between Consumers and Real Estate Brokers vary from state to state, and all have been rewritten in the last 25 years. Depending on the laws of the state in which they are licensed, Brokers provide services through one of six (6) relationships:

#1) Single Agency: A Broker represents only the interests of the Landlord or the Tenant (or the Seller or Buyer) in a transaction, either as the “Listing Agent” for the property or as a “Tenant’s Agent” or a “Buyer’s Agent” for the Occupier. Consumer Advocates maintain that Single Agency is the optimum form of representation. This is The Gold Standard of Representation, especially for Tenants and Owner-Occupants.

#2) Designated Agency: This occurs when a conflict of interest arises within a Brokerage Company and one Broker is in a position to represent both parties on opposite sides of a transaction; for example, the Landlord and the Tenant on lease. To seemingly remove the conflict of interest, the Employing, Sponsoring or Managing Broker of the Brokerage Company separately designates two (2) of his In-house Brokers, one to represent the Landlord and the other to represent the Tenant.

When states require that Employing, Sponsoring or Managing Brokers implement safeguards to protect a Client’s confidential information, academics and Consumer Advocates say that Designated Agency is the next best alternative to Single Agency. But we maintain that there’s a giant drop off between #1 Single Agency Representation versus #2 Designated Agency. That is particularly true for the Tenant, which only needs one lease at a time as compared to a Landlord that requires assistance from its Listing Broker or Landlord’s Agent with multiple leases in a single building or maybe even in multiple buildings in a portfolio.

Colorado offers Designated Agency. In reality, it was creative wiggling by the Big Brokerage Houses and traditional Commercial Brokers to get the Colorado Legislature to exempt them with a pen from having hundreds of troubling, very inconvenient conflicts of interest. You see, when the Big Brokerage Houses and traditional Brokers were previously seeking to represent Tenants, every single one of their property listings was an actual or potential conflict of interest. So the Colorado Legislature gave them just the legal loophole they wanted. In my opinion, you can expect to see this occur in many other states, too.’

#3) Disclosed Dual Agency: This is when a single Broker or two (2) Brokers working for the same Company provide services simultaneously to both the Landlord and Tenant (or the Seller and Buyer) in a limited, reduced agency relationship, which they must disclose to the to Principal Parties to the transaction. However, part of the disclosure is that neither Broker is legally allowed or obligated to represent the best interests of either the Landlord or the Tenant (or the Seller or Buyer).

In states with no provisions for Designated Agency, the single broker or two (2) Brokers affiliated with the same Company may be considered Dual Agent(s). It’s rather like “double agents” in the world of espionage and it’s not a good situation for Landlords and Tenants or Sellers and Buyers because Dual Agents are required to be impartial and cannot act as an advocate for either side of the transaction.

Although controversial even among Real Estate Brokers and Agents, Disclosed Dual Agency does present an opportunity for experienced Landlords and Sellers to negotiate discounted or “variable rate” commissions in advance, primarily because the Landlord or Seller would have to settle for a lesser standard of representation than in a Single Agency relationship.

But for Tenants and Buyers in the US, who don’t pay the commission to their Brokers or Agents, since it’s paid by Landlords or Sellers, what Tenants and Buyers unfortunately receive in Dual Agency situations are lower standards of representation, including zero advocacy.

#4) Transaction Brokers, Facilitators & Intermediaries: Transaction Brokerage occurs when one (1) Broker or two (2) Brokers at the same Brokerage House/Company work with a Landlord or Tenant or a Seller or Buyer in a non-agency, non-advocacy relationship. It may or may not be declared in writing but a Transaction Broker owes no fiduciary duties of loyalty and obedience to a Landlord, Tenant, Seller or Buyer.

A Broker that performs Transaction Brokerage is called, as one might expect, a “Transaction Broker” in some states but a “Facilitator” or “Intermediary” in other states. In Colorado, it’s called a Transaction Broker and in Texas it’s called an Intermediary.

Transaction Brokers, Facilitators and Intermediaries share the same disadvantages as Dual Agents because neither the Landlord nor Tenant (nor the Seller or Buyer) can expect a Broker to represent its best interests during any negotiations. As a result, a Tenant or Buyer working with a Transaction Broker, Facilitator or Intermediary has little latitude to file a claim for professional negligence or ommission by any such Broker.

Another little dirty secret is that some Brokers intentionally dodge having the higher standards and duties owed to a Tenant or Owner-Occupant under a Single Agency relationship and prefer to work as Transaction Brokers, Facilitators or Intermediaries. Why? Because it affords them much more “wiggle room” and greater margin for error, plus it leaves the door wide open for a potential double-dipping down the road.

#5) Providing Ministerial Services to Unrepresented “Customers”: In real estate law, the unrepresented Tenant or Buyer is often called a “Customer.” A Listing Broker for a property may avoid splitting a commission with an outside Cooperating Broker by providing limited administrative services to an unrepresented Tenant or Buyer, i.e. to a Customer. Why? Again, it’s so the Broker can bank a commission on both sides of a transaction.

#6) Subagency: It’s pretty clear that the Listing Broker for a property represents the Landlord or Seller in a declared, usually written agency relationship, called a Listing Agreement.

But in some states, like Texas, without a written or declared agreement, all Brokers and Salespeople who work with Tenants or Buyers are actually legally “Subagents” of the Landlord or Seller’s Listing Broker/Agent for the property.

That’s right.

It means that all of the Brokers involved in a Subagency state like Texas legally owe 100% of their allegiance, loyalty and expertise to the Landlord or Seller. The Tenant or Buyer has no legal representation whatsoever.

In effect, in a Subagency state all of the Brokers can legally gang up against a Tenant or Buyer, if the Tenant or Buyer does not elect to sign up a Tenant or Buyer’s Agent to act as its advocate and to protect and advance its best interests.

Although Subagency was previously a national real estate industry practice in the US until the 1990s, this form of representation has largely fallen out of favor due to lack of protection for The Public/Consumers and the legal liability risks for Brokers, Landlords and Sellers. Nevertheless, Subagency remains the default or beginning legal relationship in a few states where nothing is in writing between a Tenant or Buyer and a Commercial Broker.

Colorado does not allow Subagency but in Texas it’s the default relationship. Unfortunately, Subagency can turn into a bad dream for unrepresented Tenants, Buyers and Owner-Occupants. To be frank, I can’t even believe that Texas and a few other states still allow Subagents.

CONCLUSIONS

Every state in the US provides avenues for Commercial Brokers to double-end deals and double-dip on fees, which is usually the worst-case scenario for Tenants, Buyers and Owner-Occupants.

Of the eight (8) states that ban Dual Agency altogether, four (4) states still allow Designated Agency (Alaska, Colorado, Maryland and Texas); five (5) states allow Transaction Brokerage, Facilitators or Intermediaries (Florida, Colorado, Texas, Kansas and Oklahoma); and three (3) states allow both Transaction Brokerage and Designated Agency (Alaska, Colorado and Texas).

Designated Agents, Subagents, Transaction Brokers, Facilitators and Intermediaries, effectively, are all just Dual Agents and double-dipping under different legal names. Certain states’ outlawing of Dual Agency is pretty much an illusion and window dressing to assuage the legitimate concerns of Consumers/The Public.

Designated Agency, in particular, is artful window dressing that quite pleases Big Brokerage Houses and traditional Commercial Brokers, all of which seek to obfuscate and camouflage their numerous Conflicts of Interest. It still allows them to legally double-end deals as an excuse to double-dip on commissions. Dual Agents, Subagents, Designated Agents, Transaction Brokers, Facilitators and Intermediaries do little good for Tenants, Buyers and Owner-Occupants, since none of them are true advocates.

To argue otherwise is disingenuous but traditional, regular Commercial Brokers go out there and do it every day.

This troubling issue for Tenants and Owner-Occupants is critical enough for the Office of General Counsel in the New York Department of State to post a notice to The Public. The warning is titled “Be Wary of Dual Agency” and you can read it for yourself at this link.

Honestly, the more I think about it, it’s obvious that Big Brokerage Houses and traditional Commercial Real Estate Brokers believe that Tenants and Owner-Occupants are naive. And that Occupiers still won’t recognize Conflicts of Interest or do anything about them. At best, the whole thing is confusing, even to licensed Brokers.

Some traditional Brokers still argue adamantly, as long as they disclose double-ending and double-dipping to the Landlord and Tenant or to the Seller and Buyer, then it’s perfectly OK based on the “Everyone Knows About It Theory.”

Here’s a link to a stunning article titled Major US Tenant Files Suit Alleging Multi-state Real Estate Fraud & Bribery Scheme. It’s about what goes wrong when a major Tenant doesn’t take Conflicts of Interest seriously enough and engages a Big Brokerage House accustomed to serving two masters in the same transaction. Letting the fox count the chickens doesn’t usually end well and this story doesn’t.

For Tenants, Buyers and Owner-Occupants, what is the point of working with a Broker, even a friend or acquaintance, if they are not a true advocate sitting on your side of the table? It costs more or less the same to have your own advocate as it does to have a Broker whose loyalty is either totally to the other side or whose hands are severely limited and tied halfway behind his or her back.

This is why true Tenant/Buyer Representatives (“Tenant Reps”), Tenant Brokers, Tenant Rep Brokers, Tenant’s Agents and Buyer’s Agents, like MacLaurin Williams and our colleagues at MacLaurin Williams Worldwide, practice only Single Agency Representation. That is The Gold Standard of Representation. We never consider representing two (2) masters in the same transaction. Just because the law allows (less principled) Commercial Brokers to double-end deals and double-dip on commissions, we strongly believe that it’s highly unethical and we won’t do it.

But, for most Commercial Brokers in the US, double-ending and double-dipping are business as usual.

Author of this article, William Gary, MBA, MIM works at MacLaurin Williams Worldwide and can be reached by +1 303-901-1108 or at wgary@MacLW.com.

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Who Really Represents You in a Commercial Lease Negotiation?

Posted on January 24, 2018 by Mike Kushner in Blog, Tenant Representative/Buyer Agent No Comments

Who Really Represents You in a Commercial Lease Negotiation?

When it comes to leasing commercial workspace, too many tenants mistakenly believe that the landlord’s leasing agent/broker will somehow represent them in negotiations. Unfortunately, this is never the case.

The important question that this article answers is, “Who really represents who in a commercial lease negotiation?”

As a tenant, your wants and interests are usually different than the landlord’s, at times even diametrically opposed. It’s impossible for one broker to represent both sides of your deal faithfully and fairly. There will always be conflicts of interest and the broker most often favors your landlord, not you as the tenant.

Too often, a commercial tenant begins the process of leasing office space without hiring a tenant representative to 100% exclusively represent them. Usually they do not realize that a tenant rep is not at the cost of the tenant, since the tenant rep will normally co-broke a commission with the listing agent.

At some point, tenants then find themselves too far down the road to fully benefit from the expertise, advocacy and unbiased representation of a true tenant rep. This can result in a number of troubling issues and frustrations for the tenant. These include losing the upper hand in negotiations, being subject to unfair pricing and unsatisfactory terms and too late realizing that things could have gone far better if they had a professional dedicated solely to representing their best interests.

It’s important for every commercial tenant to understand the vast difference between a tenant representative and a traditional commercial real estate broker.

Helping us answer this critical question and more is William Gary, Principal at MacLaurin Williams, LLC and founder of The Tenant Rep Channel. Gary’s firm is committed to exclusively representing commercial tenants and owner-occupants and creating valuable resources that help to educate the public on the value of exclusive, 100% tenant representation.

Differences Between Tenant Representatives and Traditional Real Estate Brokers

A real 100% tenant rep should be able to meet all the criteria needed to take the exclusive tenant rep pledge. A landlord’s agent or traditional broker simply cannot make this pledge to tenants and owner-occupants. A real tenant rep never puts him or herself in position to double-end an occupier’s transaction and double-dip on fees/commissions. That’s what traditional CRE brokers frequently attempt to do. It’s their highest goal.

Furthermore, a 100% tenant rep acts as a true fiduciary, advocate and loyal, obedient agent for an occupier. On the other side of the table, the opposing landlord’s agent does this for the landlord. A true 100% tenant rep also conscientiously avoids and turns away from conflicts of interest. Traditional brokers create and run towards them to try and double their fees in your transaction.

Vision and Mission of the Tenant Rep Channel

After resigning from the ITRA Global Organization, MacLaurin Williams, LLC still wanted to have a 100% tenant rep network to serve multi-market clients. Gary explains, “We wanted to compete harder and more effectively against large tenant rep chains and traditional brokerage houses that all perform tenant representation.”

Initially, The Tenant Rep Channel was intended to be an informal 100% tenant rep network just for MacLaurin Williams’ own use. But it escalated when Gary asked two other 100% tenant reps, Chris Carmen (Indianapolis) and Craig Melby (West Palm Beach/Asheville) if they might find a use for it, too. They were immediately interested – and so it grew from there!

Unlike traditional CRE broker networks, The Tenant Rep Channel is an informal, virtual model that doesn’t have any initiation fees, dues, required conferences, travel expenses for airfares and hotels, by-laws or contracts. The mission: Just keep it simple and base it around a shared Google map + list of major markets that every participating 100% tenant rep firm must prominently display on its own website.

Amazingly, the bigger independent, 100% tenant rep firms were just as interested in The Tenant Rep Channel’s marketing tool as the smaller firms. They still felt like they needed a big coverage footprint to compete head-to-head more successfully against the big brokerage houses, such as CBRE, JLL, C&W, Colliers, Newmark, etc., as well as Savills Studley and Cresa as tenant rep chains.

The Tenant Rep Channel’s growing success comes from its ability to provide a big coverage footprint for independent, 100% tenant rep firms. It’s an instant and very real 100% tenant rep network, with most TRC principals having 20 and 30 years of CRE experience. It’s a super heavyweight group in terms of experience, talent and skills.

Omni Realty Group is proud to be a part of The Tenant Rep Channel’s growing network.

How Awareness of the Traditional Broker Conflict Will Reshape Commercial Real Estate

With more education and awareness of the inherent conflicts of interest in the traditional CRE broker model, combined with new resources like The Tenant Rep Channel, you might anticipate that a major shift would take place in the Commercial Real Estate Industry where tenants and buyers would flock to and favor 100% tenant reps over traditional brokers.

However, Gary notes, “Too many occupiers still believe that CRE brokers are pretty much all the same, other than some work for big firms and some for smaller shops.” He goes on to add, “Occupiers often know some CRE brokers as friends or family and they’re comfortable hiring them without understanding the complexity of local agency laws.”

As 100% Tenant Reps, we’ve not done a good enough job of making it clear that the CRE Industry is terribly plagued by conflicts of interest and that these conflicts of interest frequently do serious damage to the best interests of occupiers. Most people can grasp that their attorneys should not have any conflicts of interest in their legal matters; it’s more of a Win vs. Lose situation. But occupiers don’t make the same leap when it comes to hiring CRE Brokers to handle their CRE transactions.

The bottom line is that in order to reshape the Commercial Real Estate Industry, it’s incumbent upon 100% tenant reps to better explain “why” conflicts of interest are so damaging for occupiers. We need to educate tenants and buyers on what can go wrong. Simply saying, “We don’t have conflicts of interest,“ doesn’t resonate with occupiers. It’s not nearly enough.

Occupiers need to learn why conflicts are harmful for them; how they can waste tons of valuable time and spend significantly more money; money that is their valuable net profits.

Gary concludes with these final thoughts, “One thing that we initially hoped would occur on The Tenant Rep Channel is happening. By being connected through this network, creative ideas are getting shared worldwide and some really innovative things are blossoming organically.

The 42Floors Elite Site Widget, which is a full market, commercial property search module for our own websites, is one example. I urge every 100% tenant rep to check it out and really assess the value it could have for your business. We all need to get serious about educating occupiers on the stark differences between 100% tenant representatives and traditional CRE brokers!”

Do you have another question related to the differences between tenant representatives and real estate agents? We welcome you to join in the discussion by leaving a comment below!

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What Real Estate Needs to Learn from the Legal Industry

Posted on October 15, 2017 by Mike Kushner in Blog, CPBJ Articles, Tenant Representative/Buyer Agent No Comments

This article was originally published on the Central Penn Business Journal and DukeLong.com.

The issue of conflicts of interest between parties exists in a variety of industries. Ethics rules prohibit a single lawyer from representing competing sides in the same transaction. It’s common sense. You can’t ensure fair and equal representation to competing parties if you represent both sides. And clients want more than just fair representation; they want to feel they have an advocate who puts their interests above all others.

So why then, are real estate agents not restricted from representing competing parties in the same way lawyers are? In Pennsylvania, as in many states across the United States, real estate agents are permitted to represent both a buyer and seller (or tenant and landlord) in the same real estate transaction. It’s great for the real estate agents since they make full commissions, but what about the clients they represent?

The regulations and restrictions (or lack thereof) surrounding a real estate agent’s conflicts of interest when representing both parties is cause for concern. If real estate agents were required to approach conflicts of interest in the same way lawyers do, here is how the real estate industry would be reshaped.

The Legal Model

The American Bar Association published and periodically revises Model Rules of Professional Conduct, which have been adopted as legally binding ethics rules governing lawyers in most States. The Model Rules govern conflicts of interest with both current and former clients. Under the Model Rules (and under the ethics rules of the States that have not adopted the Model Rules), law firms may not represent both parties in a single transaction. This means a buyer/tenant must have separate legal representation from the seller/landlord. This gives clients complete assurance that their lawyer is committed solely to their interests. Moreover, one party cannot be pressured into using the other party’s lawyer, because it simply isn’t an option.

Real vs. Perceived Conflicts of Interest: Does It Make a Difference?

Conflicts of interest between two parties can be real or perceived. While real estate agents may argue that they always take a fair and balanced approach in their real estate transactions, if they represent both parties how that can be guaranteed? If one party doesn’t get exactly what it wants, it may question whether its real estate agent did everything possible to represent its interests. It doesn’t make a difference whether a conflict of interest is real or perceived, for both parties to feel adequately represented they cannot use the same real estate agent.

Why Dual Agency Doesn’t Work

Full service commercial real estate firms and brokerage houses tout the fact that they can “do it all.” They represent both a buyer/tenant and seller/landlord in a real estate transaction through what is called dual agency. However, dual agency is not in the best interest of either party, just the real estate agent who makes commission on both sides.

In dual agency, a real estate agent is more likely to steer buyers/tenants toward properties they represent on behalf of their seller/landlord clients. When it comes to negotiating terms, parties represented by the same real estate agent have less negotiation power and may have to compromise more than they would have if they had exclusive representation. And the list of potential abuses goes on.

The challenge is many commercial buyers and tenants aren’t aware that they can work with a real estate agent who is 100% exclusive to representing the interests of the buyer/tenant, often at no cost to them. There are real estate firms right here in Central Pennsylvania that only represent corporate business space users (buyers and tenants) and have resolved to never represent landlords or developers. Buyers and tenants need to be made aware they have options for sole representation and it’s critical they seek this out as the first step when looking for commercial space.

One Real Life Example

In 2016, the California Supreme Court upheld a challenge to dual agency in the case of Horiike vs. Coldwell Banker. The case has gone on to receive national attention regarding the practice of dual agency and the question of whether a single brokerage company can actually represent the interests of two competing parties in a fiduciary capacity.

The original case was based on a dispute regarding the square footage of a property purchased by the plaintiff, Hiroshi Horiike, who was represented by the same company marketing the property for sale, Coldwell Banker. The court determined that Coldwell Banker did not provide the same degree of care to the buyer as compared to the seller of the property, but owed both the same degree of care and representation.

Many of the world’s largest real estate companies both practice and encourage dual agency. The case of Horiike vs. Coldwell Banker brings to light the inherent conflicts of interest in such practices. Some states, like Colorado, have made dual agency illegal. It’s likely that California will follow suit. Given the national attention of this case, it’s reasonable to think other states will now consider outlawing dual agency as well, or at least putting regulations in place to reign in abuses.

The Issue from a Legal Perspective

Tim Anderson, Partner at Pepper Hamilton LLP, represents a variety of clients in real estate conveyancing, leasing, financing, foreclosures and litigation. He shares his perspective on conflicts of interest in real estate transactions.

“In real estate law, we take conflicts of interest very seriously. For example, we cannot represent both parties to a single transaction. We may represent each party in separate transactions if we conclude that we can provide competent and diligent representation to each affected client, the representation is not prohibited by law, and each affected client gives informed consent in writing,” explains Anderson.

“I routinely caution clients about the inherent risks of dual agency in real estate transactions. I warn clients about the risk that their agent’s representation of their interests may be limited by the same agent’s responsibilities to the other party. I’ve found that clients who agree to dual agency, because they think they can protect their own interests, often do not treat their own agent with complete candor,” says Anderson.

Lastly, Anderson offers this advice, “In my opinion, the real estate industry would benefit from adopting rules similar to the rules for lawyers. This does not necessarily require real estate agents to represent only buyers or sellers (landlords or tenants), but real estate agents should not try to represent the buyer and seller (landlord and tenant) in the same transaction.”

To close, I hope that the real estate industry as a whole will reflect on the ways in which other industries handle the issue of conflicts of interest. To allow even the perception and possibility of the conflicts of interest that occurs in dual agency is unfair and unnecessary.

To tenants and buyers looking for commercial space, I urge you to do your research and find an exclusive tenant representative or buyer’s agent who will strictly represent your interests in a real estate transaction. All parties are entitled to exclusive representation; be sure to seek out yours!

This article was originally published on the Central Penn Business Journal and DukeLong.com.

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How Tenant-Only Broker Representation Will Shape the Future of Real Estate

Posted on December 8, 2016 by Mike Kushner in Blog, Tenant Representative/Buyer Agent No Comments

Note: This article was originally published by www.DukeLong.com. Click here to read the original version.

How Tenant-Only Broker Representation Will Shape the Future of Real Estate.

Tenant-only broker representation is quickly growing in popularity and moving into the mainstream of real estate. Now more than ever, people looking for space realize they need a broker to solely represent their interests. It doesn’t take much more proof than to examine the success of the two premier exclusive tenant rep firms that are now part of multi-billion dollar companies. The Staubach Company, founded by Roger Staubach who pioneered the specialty of tenant representation,was acquired by Jones Lang LaSalle (JLL) and did $6 billion in revenue in 2015.

Studley, another firm offering exclusive tenant representation, was acquired by Savills, a global real estate powerhouse that did £1,283.5 million in revenue in 2015. If this trend continues, and I expect it will, other brokerage firms will need to adjust their practices to provide what clients want – fair and exclusive representation. Here is how I predict tenant representation to shape the future of real estate.

Technology will change the role of a tenant representative, but not replace it.

With technology making it easier than ever for potential tenants and buyers to find available properties, the future role of a tenant representative will be less about helping someone find space. Rather, tenant representatives will be sought out to provide advice, negotiate and exclusively represent the interests of the tenant/buyer.

Successful tenant representatives will use technology to streamline and automate the ways in which they research properties. This will allow them more time to reinvest in providing clients with their expertise and non-conflicting representation.

Large brokerage firms will need to “pick a side.”

In November 2016, the California Supreme Court upheld a lower court ruling that a listing broker had a fiduciary responsibility to both the buyer and the seller in a “dual agency” transaction. This case dealt with the 2007 sale of a Los Angeles home that was marketed as 15,000 square feet, but in reality was 11,000 square feet. The buyer reasonably felt like the brokerage company had pulled a fast one on him, especially since the house was both listed and sold by Coldwell Banker.

This court decision has potentially far-reaching impact on how commercial and residential real estate brokerages do business. While some may be able to continue doing business as usual and make their disclosures a little more apparent, the large brokerage firms may find it more difficult to do that and still be able to adequately represent both sides of a transaction. Essentially, large brokerage firms will need to pick a side. Will they represent the buyers or the sellers?

I predict we will see more real estate brokers choose to exclusively represent one side or the other so that they don’t risk the appearance of (or real) conflict of interest that just might result in a costly court battle.

Clients will get smart about seeking out exclusive representation.

Potential buyers and tenants are getting smarter about bringing their own representation to the table. Because of recent news stories and court cases, like the one mentioned above, light is finally being shed on the questionable practices of brokerage firms that represent both sides of a real estate deal. In nearly any other industry, this conflict of interest would never fly. Finally, real estate is catching up and buyers and tenants are seeking out exclusive representation to ensure a fair deal.

For many reasons, the growth in tenant-only broker representation is a good thing. It means tenants and buyers are getting equal representation in real estate transactions. It means companies are recognizing the conflict of interest in representing both sides and making changes to offer better transparency and disclosure clients. Finally, the growth in tenant-only broker representation means real estate professionals can and should specialize. People don’t want a Jack of All Trades, they want an expert who exclusively represents one side of a deal.

Note: This article was originally published by www.DukeLong.com. Click here to read the original version.

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4 Risks of Working with Real Estate Brokers Who Represent Both Buyers and Sellers

Posted on June 10, 2015 by mike.kushner in Blog, Tenant Representative/Buyer Agent No Comments

It is a safe observation based on over 30 years of real estate practice that the vast majority of consumers – in this case real estate buyers/tenants and sellers/landlords – do not understand the concepts of “agency.” One might also observe that a significant segment, if not most, of the licensed real estate practitioners do not completely understand the concepts of “agency.” This is not so much an indictment of real estate licensees as it is a statement on the twisted, awkward and convoluted nature of agency laws that have been imposed on our industry by our esteemed governing and regulatory bodies.

The Real Estate Licensing and Registration Act (RELRA) requires that consumers be provided with a Consumer Notice at the initial interview or meeting. Instead of boring you with an explanation of the entire Consumer Notice, I am going to tell you about the most important part:

Buyer Agent (or Tenant Rep): As a buyer agent (or tenant rep), the licensee and the licensee’s company work EXCLUSIVELY for the buyer/tenant even if paid by the seller/landlord. The buyer agent (or tenant rep) MUST act in the buyer’s/tenant’s best interest, including making a continuous and good faith effort to find a property for the buyer/tenant, except while the buyer/tenant is subject to an existing contract, and must keep all confidential information, other than known material defects about the property, confidential.

What does all this mean? If you are buying or leasing commercial real estate you want a Buyer Agent/Tenant Representative to represent you. Here are four risks that you don’t want take:

Risk #1: Your broker will be representing two opposite interests

When you think about a tenant or buyer and a landlord or seller, each has a need that is opposite of one another. Everyone involved also wants the best deal at the best price. This is where the inherent conflict exists. A real estate broker cannot equally represent both parties’ interests while negotiating hard. A better deal for one party means a lesser deal for another party. Someone will always play second fiddle. Do you want to risk this person being you?

Instead, look for a real estate broker who only represents clients like you – either a tenant/buyer or a landlord/seller. Not both.

Risk #2: You may be pushed into an option that is not best suited for you

The second risk of working with a real estate broker who does not exclusively represent one party is that you may not be presented with all of the options available to you. For example, you are looking for office space and your broker represents several landlords who have office space available. You are likely going to be pushed toward choosing from these properties first before they show you outside properties with which they have no association.

While this makes perfect business sense for your broker, it doesn’t benefit you in the same way. You deserve a broker who will exclusively represent your interests as a buyer/tenant and do all the research necessary to find your ideal property – beyond their own internal client book.

Risk #3: You will not have your broker’s undivided time and resources

You are not likely to ever be your broker’s only client (unless business is exceptionally slow). A good broker will try and dedicate adequate time to meet your needs in a timely fashion, but a broker who represents both sides will have even less available time for you. In addition to fielding your questions, requests and negotiations, they will also be juggling the same from the landlord or seller with whom they want you to sign the deal. .

Ensure your needs will made a priority by working only with a broker who exclusively represents you as a buyer or tenant.

Risk #4: You will get a “Jack of All Trades”…but a master of none

As mentioned in the introduction of this article, for some industries it is an advantage to be a “Jack of All Trades.” In real estate, however, specialization if critical for remaining unbiased and motivated to only work in the favor of one side of the negotiating table. A similar example would be a lawyer. Would you want to be represented by someone in court who was advocating for your case as well as the person arguing the opposite side? The same is true when selecting your real estate broker. You don’t want a mediator; you need someone who is completely free to take your side and negotiate 100% in your best interest…and this is a an exclusive tenant representative or buyer agent.

Have you worked with a real estate broker who represented both tenants and buyers as well as landlords and sellers? Was your experience good or bad? Share your story by commenting below!

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