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Agent Incentives Are Still Commission Steering — When Is the Industry Going to Stop? · Dishin' Dirt with Gary Pickren

• 0:01
  SPEAKER_00: This is Dish and Dirt with Gary Pickering, South Carolina's only podcast dedicated to the real estate agent craft.
• 0:09
  SPEAKER_00: And now the host of Dish and Dirt, Gary Pickering.
• 0:12
  SPEAKER_00: Greetings and welcome back, everyone, to another episode of Dish and Dirt.
• 0:15
  SPEAKER_00: I'm your often opinionated, breathing wrong host, Gary Pickering, coming to you from the beautiful downtown Columbia, South Carolina offices of Blair Cato, Pickering, Castelline, this, the first week of September 2025.
• 0:25
  SPEAKER_00: Last week or so I did a legal tip on builder bonuses that resulted in a lot of questions, a lot of concerns.
• 0:32
  SPEAKER_00: So today, what I'm gonna do is walk you through the bonus situation, which I really prefer just to call incentives.
• 0:37
  SPEAKER_00: And this is not just for sellers that are builders, but just for the resale sellers as well.
• 0:42
  SPEAKER_00: And what we're gonna do is answer those questions.
• 0:45
  SPEAKER_00: As a listing agent, should you be offering other agents incentives to show your house to, i.e., steer buyers to you, or should you be offering incentives to the buyer to purchase the house?
• 0:57
  SPEAKER_00: Likewise, as a buyer's agent, should you be accepting bonuses or incentives, particularly when you do not have a bonus or incentive already set forth in your buyer representation agreement?
• 1:07
  SPEAKER_00: Should you be directing people or pushing people toward houses that have incentives?
• 1:12
  SPEAKER_00: So we're gonna answer those questions.
• 1:13
  SPEAKER_00: This podcast is likely to piss off some people.
• 1:15
  SPEAKER_00: We didn't make these rules, but this is what Sitzer Burnett has in store for us.
• 1:19
  SPEAKER_00: So we just follow these rules to keep us out of getting sued again.
• 1:24
  SPEAKER_00: So that's what we're gonna do today.
• 1:25
  SPEAKER_00: We'll talk about all of this and answer those questions.
• 1:27
  SPEAKER_00: Before we do that, we do have a Spartanburg event going on on September 4th from four to seven o'clock at Dre Bar and Grill in Spartanburg.
• 1:35
  SPEAKER_00: It's a get to know the new lawyer and paralegal in our Spartanburg office.
• 1:38
  SPEAKER_00: If you've been following us in the upstate, you know we have a new office.
• 1:41
  SPEAKER_00: We have moved from downtown Spartanburg over to John B.
• 1:43
  SPEAKER_00: White Boulevard over there near the Outback.
• 1:46
  SPEAKER_00: That's Reville Road for you people who grew up in Spartanburg like myself.
• 1:50
  SPEAKER_00: But we do have a new lawyer, Carson Murray and Alicia.
• 1:53
  SPEAKER_00: They are both new to us in the Spartanburg office.
• 1:56
  SPEAKER_00: And I know most of y'all have already worked with Carson and Alicia before, but this is just to get an opportunity to come in and sit down, have a drink with them, get to know more about what makes them tick as people and as lawyers in paralegal.
• 2:08
  SPEAKER_00: So come on out to Dre Bar Thursday night from four to seven to get to meet the people in Spartan.
• 2:14
  SPEAKER_00: Let's go ahead now and jump into builder bonuses or incentives.
• 2:17
  SPEAKER_00: And as I said, what we'll talk about today applies not only to builder bonuses, but to incentives and all forms of incentives, paying any higher commission rates or bonuses or any type of structure or even offering trips for selling a certain number of houses for a particular builder or whatnot.
• 2:34
  SPEAKER_00: And this even applies to your resale sellers.
• 2:37
  SPEAKER_00: Should you be offering bonuses?
• 2:39
  SPEAKER_00: I will say I had a few builder agents call me last week and they said, I don't want you to say my name or anything, but I think these incentives are all wrong and I think they violate our settlement rule, settlement rules.
• 2:48
  SPEAKER_00: What I think we should be doing is offering incentives to buyers and not offering incentives to real estate agents to sell one, two, three, five, ten of our houses.
• 2:56
  SPEAKER_00: That just doesn't sound right that we're trying to entice buyer agents to show a house based on a higher commission or a higher compensation to them.
• 3:05
  SPEAKER_00: So I think what we got to do first of all in this case is we have to look back at the Sitzer Burnett case and see what it's all about to answer these questions.
• 3:12
  SPEAKER_00: Should you be offering incentives to buyer agents or should you be offering incentives to buyers?
• 3:19
  SPEAKER_00: Should you be accepting incentives as a buyer agent?
• 3:22
  SPEAKER_00: Should you be steering people to houses that offer buyer agent incentives?
• 3:26
  SPEAKER_00: So let's look back.
• 3:27
  SPEAKER_00: Starting back in August of 2024, all matters now involving compensation or commission, they have to be viewed through the lens of Sitz or Burnett.
• 3:36
  SPEAKER_00: Whether we like it or not, that is where we are today.
• 3:39
  SPEAKER_00: And it doesn't matter if this is how you've always done it.
• 3:41
  SPEAKER_00: We've always done incentives this way, we've always done a tiered program where the more houses you sell of our product, the better you get paid.
• 3:48
  SPEAKER_00: It doesn't matter because the Sitzer Burnett case changed the whole compensation game.
• 3:54
  SPEAKER_00: And whether you like it, dislike it, or think it's complete bull, which I personally think a lot of this is bull crap myself, we are stuck with what we have.
• 4:02
  SPEAKER_00: And we have to deal with it based on the Sitzer Burnett case.
• 4:06
  SPEAKER_00: If you are a realtor or a member of pretty much any large brokerage in the United States, even if you're not a realtor, your company and the realtor association has signed onto this settlement.
• 4:17
  SPEAKER_00: And as such, if you are an associated agent or a broker of that brokerage that is a realtor or part of the settlement agreement independently of being a realtor, you are subject to the terms of the settlement.
• 4:30
  SPEAKER_00: This is not a new law.
• 4:32
  SPEAKER_00: There's no law out there that says this, though I do think there's lots of the law that do apply to this, but it is a lawsuit settlement.
• 4:39
  SPEAKER_00: A lawsuit that you lost badly, mind you.
• 4:42
  SPEAKER_00: You lost it very badly.
• 4:44
  SPEAKER_00: And so if you do not follow the settlement rules, you can be brought back into court for violating those terms and have additional penalties, attorney fees, court costs against you.
• 4:55
  SPEAKER_00: Your brokerage could get hammered for breaching the settlement.
• 4:59
  SPEAKER_00: And Ketchmark, who is everyone's enemy in real estate, and we have to listen to what our enemy says, Ketchmark has said it time and time again.
• 5:07
  SPEAKER_00: He is going to look for people, brokerages, agents, brokers that violate these rules, and he is going to quote unquote hammer you again.
• 5:15
  SPEAKER_00: And he hammered you pretty good the first time.
• 5:18
  SPEAKER_00: You know,$418 million settlement with the Realtor Association added to hundreds of millions of dollars of settlements with big brokerages that were not part of that settlement.
• 5:26
  SPEAKER_00: And Michael Ketchmark is walking out with close to half a billion dollars in attorney fees.
• 5:31
  SPEAKER_00: So he's got the money to pay people to look for you.
• 5:34
  SPEAKER_00: And even those of you who are not at the big brokerage companies or were not a realtor and part of the settlement, do you really want to take this risk?
• 5:42
  SPEAKER_00: We already know, and keep this in mind, that Patrick Nye or Ni, however you pronounce his name's lawyer up in Spartanburg, he sued 60 independent real estate agencies already in South Carolina for the same actions that were alleged against the Realtors Association and the large brokerages.
• 5:58
  SPEAKER_00: If you think that you're free of this because you're not a realtor, you're wrong.
• 6:01
  SPEAKER_00: We're all subject to these rules and we got to respect these rules and we got to follow them.
• 6:04
  SPEAKER_00: So while there's no settlement police roaming the halls of the Realtors Association or at your brokerage or at the real estate commission, there are a lot of your competitors out there who are more than happy to drop a dime on you.
• 6:15
  SPEAKER_00: So you have to understand that it when you have these matters, it's easy for your fellow competitors to go rat you out.
• 6:23
  SPEAKER_00: We need to keep that in mind as well.
• 6:25
  SPEAKER_00: Secondly, the Realtors Association cannot and will not allow you to violate their settlement rules and get this association in more trouble, more lawsuits, and haul back before the court.
• 6:35
  SPEAKER_00: The association does have the power of enforcement and does have the power to hold you in violation of their code of ethics, their rules, their regulations, and penalize you for violating those rules.
• 6:46
  SPEAKER_00: And those penalties could include suspension from the association, fines, and so forth.
• 6:51
  SPEAKER_00: And for those associations that have MLS access, they could cut off your MLS access, which means you're cut off from the practice.
• 6:58
  SPEAKER_00: So there is real enforcement here by the Realtors Association to make sure that those terms of the settlement are complied with.
• 7:06
  SPEAKER_00: And they have every right to do that because they just wrote a$418 million check to cover these problems.
• 7:12
  SPEAKER_00: In addition to that, your brokerage can ill afford for you to violate these terms and land them back into a lawsuit.
• 7:18
  SPEAKER_00: If you are one of these big brokerages who settled independently of the Realtor Association, believe me when I tell you that Ketchmark is also monitoring the settlement as to these big brokerages.
• 7:29
  SPEAKER_00: And the first time that he sees that the settlement is being disobeyed, he's holding those companies back into court saying, nothing's changed.
• 7:37
  SPEAKER_00: They're still doing the same thing.
• 7:38
  SPEAKER_00: I want more money, which is going to result in those brokerages writing another big check.
• 7:43
  SPEAKER_00: And so I can tell you, your brokers are not going to stand by and let you completely ignore the settlement and the rules.
• 7:49
  SPEAKER_00: What we have to do as real estate agents and brokers is follow the damn rules.
• 7:54
  SPEAKER_00: Follow the rules whether we like them or not, adapt and pivot our business to make sure that we're doing things the right way.
• 8:01
  SPEAKER_00: Again, I don't like a lot of these rules.
• 8:03
  SPEAKER_00: A lot of the rules that came out of this are stupid, but some of them make a lot of sense.
• 8:07
  SPEAKER_00: With all that in mind, I'm going to look back with you now at many of the allegations that Ketchmark made that do reign true in this compensation argument.
• 8:17
  SPEAKER_00: And keep in mind, I think Ketchmark kind of fell ass backwards into this.
• 8:21
  SPEAKER_00: I don't think you truly understood real estate, but some of the allegations that have worked their way through that, and that's what typically happens in litigation.
• 8:27
  SPEAKER_00: They start out with one idea, and as the case develops, the whole case changes, and then the ideas change.
• 8:34
  SPEAKER_00: And that's where we are essentially in this case with Ketchmark.
• 8:37
  SPEAKER_00: But let's look at his top five allegations as it comes to compensation.
• 8:41
  SPEAKER_00: And I think he's not wrong here.
• 8:42
  SPEAKER_00: Number one, allegation, real estate agents, in his opinion, steer toward the higher commissions.
• 8:48
  SPEAKER_00: And I don't think that you can argue against this because if this was not true, I would have told you.
• 8:53
  SPEAKER_00: So that's my favorite verse in the Bible.
• 8:55
  SPEAKER_00: But more importantly, you would not have had agents and builders advertising these honuses.
• 9:00
  SPEAKER_00: Obviously, they believe that instead of offering an incentive to a buyer, that if they offer the incentive to a real estate agent, then the real estate agent will show up with the buyer.
• 9:09
  SPEAKER_00: Well, why is the real estate agent picking this particular builder or this particular seller over another?
• 9:14
  SPEAKER_00: Because we're giving them more money.
• 9:16
  SPEAKER_00: That in and of itself is no doubt commission steering.
• 9:20
  SPEAKER_00: And that is what Ketchmark's whole case was based on was that the real estate agents were steering to higher commissions, and they were doing so because it was all set forth in the multiple listing service, what those commissions were.
• 9:31
  SPEAKER_00: And we were steering over to the highest commission.
• 9:34
  SPEAKER_00: And again, as much as we want to argue that that's not true, and I know a lot of you are like, I've never done that, I've never done that.
• 9:40
  SPEAKER_00: Bottom line is they would not be marketing and advertising bonuses if they weren't of the belief that real estate agents would steer people to those properties over others.
• 9:50
  SPEAKER_00: And that's wrong.
• 9:51
  SPEAKER_00: Allegation number two was that commission steering is a breach of your fiduci duty to your client.
• 9:56
  SPEAKER_00: As a fiduciary, a duty to do what is best for your buyer.
• 9:59
  SPEAKER_00: While the house that is offering the higher commission or the bonus may in fact be the best house for that consumer, the incentive that's being offered surely makes it look like you are steering.
• 10:10
  SPEAKER_00: And on forcing in real estate, perception is reality, as they say.
• 10:13
  SPEAKER_00: On this particular builder, they're offering you nothing, but on the other builder, they're offering you a two or three thousand dollar bonus, and your client buys that house and you're taking that bonus.
• 10:22
  SPEAKER_00: It sure as looks like to everybody on the outside that the reason your client was steered to that closing instead of the other builder was because there was a bigger incentive to you.
• 10:31
  SPEAKER_00: You were the reason that you moved them over there.
• 10:34
  SPEAKER_00: It was not being done in the best interest of your client.
• 10:36
  SPEAKER_00: Therefore, it's a breach of your fiduciary duty.
• 10:38
  SPEAKER_00: Allegation number three is that agents should not be incentivized to show a particular house.
• 10:43
  SPEAKER_00: The incentive belongs to the buyer.
• 10:45
  SPEAKER_00: And that is not a wrong concept either.
• 10:47
  SPEAKER_00: If you think about it, your duty as an agent is to show every house and let your client decide.
• 10:52
  SPEAKER_00: And you should not be trying to influence your client based on the fact that you're getting paid a higher commission.
• 10:58
  SPEAKER_00: That is a problem.
• 10:59
  SPEAKER_00: There is no if and or buts about it.
• 11:01
  SPEAKER_00: Catchmark is correct.
• 11:02
  SPEAKER_00: If you are being incentivized to show a property over another property, and that incentive is more money in your pocket, that is a problem in terms of your fiduciary duty to your client.
• 11:13
  SPEAKER_00: All you need to be doing is showing every house that meets your client's criteria, and then your client decides which house they would like to buy.
• 11:21
  SPEAKER_00: It shouldn't be based on the fact you get paid more money to show this builder's house over this builder's house.
• 11:26
  SPEAKER_00: Allegation number four, you should not be able to amend your commission to capture more commission being offered.
• 11:32
  SPEAKER_00: You've already agreed to a comp.
• 11:33
  SPEAKER_00: You have already set out what your value is.
• 11:36
  SPEAKER_00: You have already convinced your buyer that that is your worth.
• 11:38
  SPEAKER_00: And any additional comp that should be offered now isn't because you did anything.
• 11:43
  SPEAKER_00: The additional comp is clearly being offered to try to steer your consumer to this house.
• 11:49
  SPEAKER_00: So why are you getting additional comp to steer a client versus doing what's in the best interest of the client?
• 11:55
  SPEAKER_00: Additionally, that additional comp should be used to lower the price of the house.
• 12:00
  SPEAKER_00: If you are possibly going to make$10,000 more than you agreed to with your buyer in the buyer representation agreement, why would the$10,000 not just be taking off the value of the house and you forego that additional compensation?
• 12:12
  SPEAKER_00: Again, I know this isn't what you want to hear, but when you think about it from the aspect of the buyer as well as your fiduciary due to the buyer, and you've already agreed in writing with the buyer as to what your compensation should be, and you're getting your full compensation.
• 12:27
  SPEAKER_00: Why are you getting the bonus?
• 12:28
  SPEAKER_00: What did you do to deserve the bonus?
• 12:30
  SPEAKER_00: You steered them to a house that paid you more money.
• 12:32
  SPEAKER_00: That's all you did.
• 12:33
  SPEAKER_00: You didn't do any additional work.
• 12:35
  SPEAKER_00: Nothing.
• 12:36
  SPEAKER_00: Allegation number five: listing agents should not direct commission for buyers' agents.
• 12:40
  SPEAKER_00: A lot of podcast material already out there on this, I've done broker-to-broker compensation.
• 12:45
  SPEAKER_00: I think it's a problem.
• 12:46
  SPEAKER_00: I still don't think a listing agent should be saying that we're gonna pay, we're gonna pay a buyer's agent X.
• 12:51
  SPEAKER_00: Buyer should be asking seller if they want compensation as part of the contract.
• 12:57
  SPEAKER_00: If not, they don't need to be asking for it.
• 12:59
  SPEAKER_00: But listing agents directing and dictating how much the buyer's agent should get paid is what got us in this lawsuit in the very beginning.
• 13:06
  SPEAKER_00: And right now, Kitchmark has a very good argument that not a lot's changing.
• 13:10
  SPEAKER_00: A lot of these brokerages are still doing broker-to-broker comp.
• 13:13
  SPEAKER_00: Listing broker is still dictating what the commission is for the buyer's agent, and that is influencing buyer agents to show houses or not show houses, which is commission steering.
• 13:23
  SPEAKER_00: You see, the theme of this is commission steering, and that a bonus or an incentive is commission steering because it incentivizes you to sell a house, not based on what's best for your client, but what's best for your financial bottom line.
• 13:36
  SPEAKER_00: Now, when you think about Ketchmark, I personally don't believe that Ketchmark really cared about what was best for the industry.
• 13:42
  SPEAKER_00: I think he cared what was good for his pocket.
• 13:44
  SPEAKER_00: But a lot of his ideas and complaints, while ludicrous from the beginning, evolved to where we are today.
• 13:50
  SPEAKER_00: If you'll remember back, Ketchmark from the very beginning said buyer's agents should be paid by the buyers, seller's agent should be paid by the sellers, and it should never cross over.
• 13:57
  SPEAKER_00: It should be prohibited.
• 13:58
  SPEAKER_00: In fact, he said, from a seller paying a buyer's agent commission.
• 14:02
  SPEAKER_00: Of course, that would have 100% destroyed the real estate market.
• 14:05
  SPEAKER_00: It would destroy the United States economy and probably would have caused a global meltdown.
• 14:10
  SPEAKER_00: But I will say he's not wrong about his five allegations.
• 14:14
  SPEAKER_00: Some are a little bit more right than others.
• 14:17
  SPEAKER_00: Some of them you have to explain a little bit, but these five allegations that he ultimately developed as his case went on, I believe are actually proving to be pretty accurate.
• 14:25
  SPEAKER_00: So let me begin now with this idea of seller incentives or bonuses to the buyer's agent.
• 14:30
  SPEAKER_00: Many builders and some homeowners right now are offering bonuses or buyer agent incentives.
• 14:36
  SPEAKER_00: And I'm still seeing this post-Sitzer Burnett.
• 14:38
  SPEAKER_00: Builders are offering these graduated bonus programs where the more houses you sell, the higher your commission, the higher your bonuses.
• 14:46
  SPEAKER_00: The idea is we'll pay you to show one house, you show two, three, four, five, six houses you get under contract, we're going to reward you and give you as much money.
• 14:55
  SPEAKER_00: For example, I've seen where a builder will pay uh 4%, 3% commission rate plus a 1% bonus.
• 15:00
  SPEAKER_00: But if you sell another house, it now becomes a 3% commission and a 2% bonus, all the way up to 6 or 7%.
• 15:06
  SPEAKER_00: You know, if you sell five or six houses, you're getting a 3% uh commission and now a 4% bonus.
• 15:13
  SPEAKER_00: But my question for you is this how do you possibly do this in 2025 and be compliant with the settlement?
• 15:21
  SPEAKER_00: You and I both know you may not get paid more than you agreed to get paid in a buyer representation agreement.
• 15:29
  SPEAKER_00: It doesn't really matter if the builder or a seller is offering 6%, 7%, 8%, 10%.
• 15:35
  SPEAKER_00: You are limited to what is in the buyer representation agreement.
• 15:39
  SPEAKER_00: So either this is just fool's goal that's being offered, or this is a lawsuit that's being offered, because you can only take what is being allowed in your buyer representation agreements.
• 15:49
  SPEAKER_00: If my agreement is for 3%, how do I take 6% that the builder is offering?
• 15:54
  SPEAKER_00: Well, the only way I can do that is to amend my agreement.
• 15:57
  SPEAKER_00: And we know we can't do that.
• 15:58
  SPEAKER_00: So let's talk about what we do know.
• 16:00
  SPEAKER_00: And I'm going to give you 10 truths about real estate.
• 16:03
  SPEAKER_00: And you understand something, please.
• 16:05
  SPEAKER_00: There's only one truth in this world.
• 16:07
  SPEAKER_00: Your truth is not a thing.
• 16:08
  SPEAKER_00: You don't have your truth, and I don't have my truth.
• 16:11
  SPEAKER_00: There's no such thing as that.
• 16:12
  SPEAKER_00: Your truth, as you like to call it, is nothing more than your opinion.
• 16:15
  SPEAKER_00: So let's stick with actual truth.
• 16:17
  SPEAKER_00: Truth number one is you must have a signed buyer agency agreement with compensation set forth in order for you to get paid in a real estate transaction.
• 16:26
  SPEAKER_00: That is without a doubt.
• 16:27
  SPEAKER_00: No signed buyer agency agreement, you don't get paid compensation.
• 16:31
  SPEAKER_00: This is also the law in South Carolina.
• 16:32
  SPEAKER_00: You got to have buyer agency or a transaction brokerage agreement and signed in order to get paid.
• 16:36
  SPEAKER_00: No signed agreement, agency or transaction brokerage, you ain't getting paid.
• 16:40
  SPEAKER_00: That's state law, that's settlement.
• 16:42
  SPEAKER_00: Number two, once you have signed an agreement, you cannot get paid more than you set out in this agreement.
• 16:48
  SPEAKER_00: When you sit down with your buyer, you are negotiating what is a fair compensation amount for the services that you are rendering.
• 16:55
  SPEAKER_00: Once you've agreed to what those services are, you cannot come back and after trade with your buyer and ask for more money.
• 17:02
  SPEAKER_00: Conversely, the buyer can't make you take less than he's agreed to pay.
• 17:07
  SPEAKER_00: So for example, if your buyer's agreed to pay you three and the seller and the buyer have agreed that the seller will pay 2% of that, the other 1% is still the obligation of the buyer.
• 17:17
  SPEAKER_00: So once we have this contract signed, the parties are obligated to those numbers.
• 17:21
  SPEAKER_00: Those agent cannot be made to take less.
• 17:24
  SPEAKER_00: Now you may choose to take less, but you can't be made to take less.
• 17:27
  SPEAKER_00: And the buyer cannot be made to pay you more.
• 17:30
  SPEAKER_00: Number three, truth is it doesn't matter what the seller wants to pay you.
• 17:34
  SPEAKER_00: What matters is what you have agreed to in your writing with your buyer.
• 17:38
  SPEAKER_00: So if your buyer has agreed to pay you X and the seller wants to pay you X plus five, it doesn't matter because all you can get paid up to is what's in your agreement.
• 17:48
  SPEAKER_00: Truth number four, you can amend your agreement, but you cannot amend it to capture more commission or more bonus, which brings us to number five.
• 17:59
  SPEAKER_00: You can only amend it if you do more work.
• 18:01
  SPEAKER_00: Number six, I cannot amend it because I had to work harder or I had to show you more houses, or they took forever to find the house they wanted, or it was just a general pain in the ass.
• 18:11
  SPEAKER_00: That is not doing more work, which brings us to number seven.
• 18:15
  SPEAKER_00: To amend your agreement, you can only amend it if you're providing more services.
• 18:20
  SPEAKER_00: For example, you're going from customer to client service.
• 18:23
  SPEAKER_00: You're going from I'm going to do a one-day showing at the of this one house to now you want full service agency.
• 18:29
  SPEAKER_00: That is changing work, and therefore you can change your commission rates at that point.
• 18:34
  SPEAKER_00: But just working harder, showing more houses, taking more time is not a reason to amend your agreement.
• 18:40
  SPEAKER_00: Number eight, you may only get paid a bonus if it's in your original buyer agency agreement.
• 18:47
  SPEAKER_00: So without having a bonus in your agreement at the time that you enter agency with your buyer, you cannot go back to amend to capture additional bonus.
• 18:56
  SPEAKER_00: Number nine is how do you convince your client that he should agree to letting you get a bonus when you haven't done anything yet?
• 19:04
  SPEAKER_00: You've done nothing.
• 19:05
  SPEAKER_00: You've convinced me that I need to hire you to be my buyer representative.
• 19:09
  SPEAKER_00: You've explained what your duties and obligations are and what your role will be in the transaction, and you've told me that a fair fee for me to pay you is X.
• 19:17
  SPEAKER_00: And now you're telling me, after I agree to pay you X, that, oh, by the way, if somebody offers me a bonus for doing what I don't know, you want to be able to accept that bonus.
• 19:26
  SPEAKER_00: My question would be is what's the bonus for?
• 19:29
  SPEAKER_00: You haven't even done anything.
• 19:30
  SPEAKER_00: How do you know you're getting a bonus?
• 19:31
  SPEAKER_00: And this brings me to truth number 10.
• 19:33
  SPEAKER_00: If you're telling the buyer that the bonus is being paid by the seller and it doesn't cost me anything, that is a complete lie.
• 19:41
  SPEAKER_00: And that lie is going to get you sued for fraud or fraud in the inducement or even a breach of your fiduciary duties.
• 19:47
  SPEAKER_00: Because that is not being paid by the seller.
• 19:50
  SPEAKER_00: It's ultimately being paid by me because the seller is adding that to the price of the house.
• 19:54
  SPEAKER_00: And it does cost you me because, in order for you to take that$10,000 bonus that they're offering, They got to increase the price of the house by$10,000 to cover it.
• 20:03
  SPEAKER_00: So don't say that.
• 20:05
  SPEAKER_00: So these are 10 truths, not Gary's truths or Gary's opinion.
• 20:09
  SPEAKER_00: These are truths from the settlement and from practice.
• 20:12
  SPEAKER_00: And I think all parties to the settlement agree as to these 10 truths.
• 20:16
  SPEAKER_00: So let's start by wrapping this up here with this nice little bow for you.
• 20:19
  SPEAKER_00: Here is why you cannot accept these incentives.
• 20:22
  SPEAKER_00: And this is why you should not amend your agreement and try to, or even from the beginning, try to put these incentives or try to figure out what possible incentives are being offered in the marketplace in the agreement in the first place.
• 20:32
  SPEAKER_00: And it's simple.
• 20:33
  SPEAKER_00: How do you explain to your client that your fee is X and that that's what it's worth?
• 20:38
  SPEAKER_00: And you agree to that.
• 20:40
  SPEAKER_00: But if some seller wants to incentivize you to show them a particular house, that they should let that seller pay you a bonus for showing a house to the buyer that might not be the best house for them.
• 20:51
  SPEAKER_00: How do you convince that buyer that you should keep that money and not give it to the client?
• 20:56
  SPEAKER_00: And I really need y'all to think through this and don't just throw up your arms and go, I disagree with Gary.
• 21:01
  SPEAKER_00: You've really got to think about this.
• 21:03
  SPEAKER_00: How do you sit there with a straight face and tell your buyer that?
• 21:06
  SPEAKER_00: I've agreed that X is what you owe me to help navigate you through this buying process.
• 21:10
  SPEAKER_00: But now, if I show you to a house to a builder or a seller who wants to incentivize me to show you that particular house, they want to give me a bonus for doing so.
• 21:21
  SPEAKER_00: So I want to keep that bonus.
• 21:23
  SPEAKER_00: And by the way, it doesn't cost you anything.
• 21:26
  SPEAKER_00: That's not true.
• 21:27
  SPEAKER_00: And theoretically, you've already told them what your effort is worth.
• 21:30
  SPEAKER_00: You have set that as your worth.
• 21:32
  SPEAKER_00: And now you're going and saying, I should get paid more for no other reason, other than the seller has decided they want to try to incentivize me to pick their house out of all the other houses on the MLS and show that house and not the other house.
• 21:46
  SPEAKER_00: I'm not really doing anything for you.
• 21:48
  SPEAKER_00: I'm doing everything for me.
• 21:51
  SPEAKER_00: I don't care which house you buy, as long as you buy this house where I get paid this incentive.
• 21:55
  SPEAKER_00: You're not showing that house because of any great work you've done or finding this house, all you've done is shown this house because you're getting paid more money.
• 22:05
  SPEAKER_00: And think about it this way: your bonus is literally coming from the adverse party in the transaction.
• 22:12
  SPEAKER_00: The adverse party is saying, here, I want to give you money in this transaction as well.
• 22:17
  SPEAKER_00: Not just your client paying you, but the adverse party is saying, if you will convince your client to buy my house, I'll give you extra money because it's in my best interest and your best interest to get your buyer to buy my house.
• 22:28
  SPEAKER_00: Notice whose best interest it might not have been in, the buyer's best interest to buy that house.
• 22:33
  SPEAKER_00: And if you don't see a problem with that, I don't know what else I can say to you.
• 22:36
  SPEAKER_00: You are being awarded by the adverse party for getting the client who you owe a duty to to do something that's in the benefit of you and the seller.
• 22:46
  SPEAKER_00: My other question as a buyer would be: why are you asking me to agree for you to get a bonus for showing me a house?
• 22:52
  SPEAKER_00: Aren't you supposed to be showing me all the houses that meet my criteria?
• 22:55
  SPEAKER_00: Don't you owe me a duty?
• 22:56
  SPEAKER_00: Why are you trying to do something for the seller?
• 22:58
  SPEAKER_00: Who is this seller you're expecting to get this bonus from?
• 23:01
  SPEAKER_00: Why are you asking me to put this in the agreement now?
• 23:03
  SPEAKER_00: You've done no work for me whatsoever, but you want to talk about bonuses and you want to tell me that some seller might put a bonus in there.
• 23:10
  SPEAKER_00: Why are they putting that bonus in there other than to get you to show me that house, which might not be the best house for me?
• 23:16
  SPEAKER_00: How do you answer a question from a buyer when he asks you that?
• 23:19
  SPEAKER_00: How can I trust you to show me a house that's in my family's best interest when you're telling me right off the bat you're wanting to show a house that you could get paid an incentive or a bonus on?
• 23:30
  SPEAKER_00: I mean, you would have to actually think I'm a complete idiot to agree to that.
• 23:33
  SPEAKER_00: And you'd also have to be a complete idiot as a buyer to not understand that you have agreed to take an X amount from me, and now the seller's offering you X times two and not understanding that that's why you're pushing that house for me, and also not understanding that that increased the cost of the house for me.
• 23:51
  SPEAKER_00: Because without that incentive, the seller could sell the house for less money.
• 23:55
  SPEAKER_00: See, here's the legal problem for you in this.
• 23:57
  SPEAKER_00: Under South Carolina law, you have a fiduci duty because you're acting in a fiduciary position.
• 24:02
  SPEAKER_00: And the fiduciary duty is when you are acting in a position of trust for another person in financial matters.
• 24:09
  SPEAKER_00: You are required to put their financial position ahead of yours.
• 24:12
  SPEAKER_00: You have to put your financial position aside when you're dealing with the fiduciary duty of a consumer.
• 24:18
  SPEAKER_00: And so I would challenge any agent to explain to me how you getting paid double of what you agreed upon is in my best interest as a consumer.
• 24:27
  SPEAKER_00: How in the world would you ever explain that to me?
• 24:30
  SPEAKER_00: How does this help me that you're getting paid this bonus?
• 24:33
  SPEAKER_00: How does this not hurt me that you're going to get paid a bonus or an incentive?
• 24:37
  SPEAKER_00: We all understand net sheets.
• 24:39
  SPEAKER_00: You know that you look at a net sheet with your seller.
• 24:41
  SPEAKER_00: If you're not doing a net sheet with your seller and you go back to real estate school, there's no doubt that when you're doing the net sheet, you're showing what the incentive is.
• 24:48
  SPEAKER_00: Take the incentive out, the net sheet goes up.
• 24:51
  SPEAKER_00: We know that the seller is going to have to get more money to get the number that he wants, which means you're going to pay for it.
• 24:58
  SPEAKER_00: But for this$10,000 bonus that this builder or seller is paying the real estate agent now, I could have paid$10,000 less for the house.
• 25:06
  SPEAKER_00: The bottom line is agent bonuses or graduated payment plans get you to sell property that is the epitome of commission steering.
• 25:14
  SPEAKER_00: There is 100% that is the epitome of steering.
• 25:17
  SPEAKER_00: It's as if we've learned absolutely nothing in this Sitzer Burnett case.
• 25:22
  SPEAKER_00: It's as if we've given a check for$418 million as an association over and we haven't learned anything.
• 25:27
  SPEAKER_00: It's as if our brokerages continue to hemorrhage money in these settlements and still think we can keep acting the same way we've been acting for years, steering for commissions, offering bonuses, offering incentives, not to the buyer, but offering them to other real estate agents.
• 25:42
  SPEAKER_00: How are you gonna sit in front of our jury and convince them that you showed this house because it was the best house for your client and it wasn't because you were getting paid incentives?
• 25:52
  SPEAKER_00: How in the world are you gonna do that?
• 25:54
  SPEAKER_00: How are you gonna do that?
• 25:55
  SPEAKER_00: Go ahead.
• 25:56
  SPEAKER_00: Here's what I want you to do this weekend.
• 25:57
  SPEAKER_00: Practice that.
• 25:58
  SPEAKER_00: Practice in front of a mirror, talking to a jury.
• 26:00
  SPEAKER_00: Convince yourself that you sold this house to John and Mary homeowner because it was in their best interest to buy the house, and it just happened that you got a bonus.
• 26:09
  SPEAKER_00: Now, record yourself.
• 26:10
  SPEAKER_00: And I want you to listen back to yourself and see how still how unconvincing that is.
• 26:14
  SPEAKER_00: Because here's the deal: at least one of you agents are going to tell me how wrong I am, that you never show a house based on a bonus structure.
• 26:20
  SPEAKER_00: Look, I like agents, I love agents.
• 26:22
  SPEAKER_00: I wish y'all got paid more.
• 26:23
  SPEAKER_00: I really do.
• 26:24
  SPEAKER_00: I think there's a tremendous value in real estate agents.
• 26:26
  SPEAKER_00: So this podcast isn't to beat up on agents.
• 26:29
  SPEAKER_00: I defend agents.
• 26:29
  SPEAKER_00: Y'all all know that.
• 26:30
  SPEAKER_00: That's why I'm on the real estate commission is to protect real estate agents as much as the public.
• 26:34
  SPEAKER_00: But even I don't believe you.
• 26:36
  SPEAKER_00: I just don't.
• 26:37
  SPEAKER_00: If it didn't have any effect on you, then why did you take the bonus?
• 26:41
  SPEAKER_00: Bottom line, if the bonus meant nothing to you, why did you not just agree?
• 26:45
  SPEAKER_00: I've already agreed with my client as to what my commission rate's gonna be.
• 26:49
  SPEAKER_00: I don't need your bonus.
• 26:50
  SPEAKER_00: In fact, what we're gonna do is we're gonna reduce the price of the house by that bonus.
• 26:54
  SPEAKER_00: So when you tell me the bonus has no effect on you, prove it.
• 26:58
  SPEAKER_00: Walk away from the bonus.
• 26:59
  SPEAKER_00: But you don't, and you didn't.
• 27:00
  SPEAKER_00: You run your net sheet, and I want you to see how you could have saved your client money by declining the bonus, reducing the price of the house.
• 27:07
  SPEAKER_00: But instead, what you're gonna do is you're gonna accept the bonus, you're gonna after trade with your client, ask your client to increase the compensation agreement.
• 27:13
  SPEAKER_00: But here's the problem is you don't even have to convince me or yourself.
• 27:17
  SPEAKER_00: What you're gonna have to do is convince a jury of your alleged peers.
• 27:21
  SPEAKER_00: And how many people do you think that serve on a jury actually like real estate agents?
• 27:25
  SPEAKER_00: I mean, when you look at the Sitzer Burnett case, only I think it was one of the people that have even bought a house before.
• 27:31
  SPEAKER_00: And they clearly didn't like real estate agents because they hit you for a tremendously large verdict.
• 27:36
  SPEAKER_00: If you'll remember, the original verdict came back, it was well over a billion dollars, almost a billion and a half dollars.
• 27:42
  SPEAKER_00: And it was not until they settled the case for$418 million that the lower name number came in.
• 27:46
  SPEAKER_00: So good luck in you convincing that the 12 jurors sitting on that jury will believe that you did not steer the consumer to this house based on compensation or incentives, but because that was the best house for the client.
• 28:00
  SPEAKER_00: I don't think you're gonna be able to convince anybody.
• 28:02
  SPEAKER_00: So whether you like it or not, the incentive should belong to the buyer.
• 28:06
  SPEAKER_00: Sellers and builders need to stop offering incentives to get agents to show your property.
• 28:11
  SPEAKER_00: Either you have a good property or you don't.
• 28:13
  SPEAKER_00: You don't need to pay more to get people to show your property.
• 28:16
  SPEAKER_00: Give the incentive to the buyer.
• 28:18
  SPEAKER_00: Giving it to the agent creates agent steering based on compensation, which is what got us in this problem in the first place.
• 28:26
  SPEAKER_00: You should be convincing the buyer they need your house and not trying to get the agent convinced to push your house so they make more money.
• 28:33
  SPEAKER_00: Buyer agents don't fall for this incentive trick.
• 28:36
  SPEAKER_00: They are setting you up for another lawsuit.
• 28:38
  SPEAKER_00: Honor your position as a fiduciary and do what's in the best interest of your client.
• 28:42
  SPEAKER_00: Top agents always, always put their clients before their own financial needs.
• 28:47
  SPEAKER_00: And if you want to be a top agent, one that's got a great reputation and gets more business, you have to put your clients' needs before your own.
• 28:55
  SPEAKER_00: Accept only what you asked for in the compensation agreement, as you are the one who set that value.
• 29:00
  SPEAKER_00: You are the one who told them that that's what you were worth.
• 29:02
  SPEAKER_00: You should not be after trading and asking for more money.
• 29:05
  SPEAKER_00: You don't like it when they ask after trade on you and try to get you to take less than you've agreed to.
• 29:10
  SPEAKER_00: Why are you after trading on your client asking them to amend so you can get more money?
• 29:14
  SPEAKER_00: Let's look at it like this any buyer who agreed to pay you X and now you're asking to get the buyer representation agreement revised so that you can get X and a$10,000 bonus should 100% recognize that they could get$10,000 off the price of the house if they refuse the bonus to you and simply ask for a reduction in the price.
• 29:32
  SPEAKER_00: And then for guys that asked for possible bonus in the original buyer agency agreement, again, how are you asking?
• 29:38
  SPEAKER_00: Are you so stupid to say it doesn't cost you anything?
• 29:40
  SPEAKER_00: Do you think your clients are simply that dumb?
• 29:42
  SPEAKER_00: Maybe they don't see it at first, but I can tell you by the time they get the closing table, they figured it out.
• 29:46
  SPEAKER_00: They see that$10,000 bonus you nonchalantly got them to agree to at signing, and they see that could have gone to their closing costs or to loan points.
• 29:54
  SPEAKER_00: All right, well, that's all the time we have for our show today.
• 29:56
  SPEAKER_00: Let me know what you think about it.
• 29:57
  SPEAKER_00: Please share us, like us, and come back again another week for another episode of Dish and Dirt.
• 30:02
  SPEAKER_00: Y'all have a great weekend, and we'll see you again next week.