Exclusive contracts: A close look at the fine print

Exclusive sales contracts from the city's major firms show big differences in the little details

First, get paid.

Sales contracts from different city real estate brokerages unanimously agree on that.

But, beyond that simple idea, Manhattan’s biggest brokerages compensate their agents differently, depending on the nature of their company’s exclusive sales contracts.

Some brokerages leave the commission amount to be filled in later. Some firms mention specifically that they will pay for advertising. Others calculate their commission as 6 percent of the total sales price, including household furnishings — the proverbial kitchen sink — thrown in.

The Real Deal obtained in April exclusive sales contracts for condos and co-ops from nine of New York’s biggest brokerages, asking each for an exclusive sales contract.

Attorneys with a combined 82 years of legal practice analyzed the contracts from the Corcoran Group, Prudential Douglas Elliman, Halstead Property, Warburg Realty, Brown Harris Stevens, Coldwell Banker Hunt Kennedy, Fenwick-Keats, Citi Habitats, and Bellmarc.

Though there were many differences, there were similarities, too. Foremost among the similarities was a resoluteness among the brokerages to get at least some money once the deal-making for a sale is under way.

Getting that exclusive right

While commission may be the first thing on an agent’s mind, of course they have to get the exclusive first.

Lawyers can weigh in harshly on exclusive right-to-sell contracts. “I wouldn’t ever let any of my clients sign one of these,” attorney Jonathan Fink said after reviewing all nine contracts. All of them entitle a brokerage to a financial cut of any sale, regardless of whether the brokerage is ultimately involved.

Fink, a partner at Samson Fink & Dubow who has been practicing law, including in real estate, for 29 years, said he thinks the contracts are too broad in scope. “I would not permit a client to sign [a contract] that doesn’t limit the earning of the commission to when and if the closing occurs,” he said.

While all the contracts examined by The Real Deal had exclusive right-to-sell provisions, not all firms clearly explained the term. Only Warburg Realty explained in its contract what it means for a seller to grant an exclusive right-to-sell.

That can be an important explanation because, if a seller wants to get out of an exclusive right-to-sell contract, it’s no simple matter. Coldwell Banker and Bellmarc were the only brokerages to allow a seller to terminate an exclusive right-to-sell before the end of the contract.

Now, fast-forward to when a contract is signed.

Five of the nine firms reviewed — Brown Harris Stevens, Warburg, Halstead, Fenwick-Keats, and Douglas Elliman — get a share, contractually, of any down payment made when a buyer is found.

If the deal goes awry, specifically when a contract is signed and the closing fails because of a willful default by the seller, Citi Habitats and Douglas Elliman spell out that they are still entitled to a commission.

But, suppose a seller has made it to the end of the exclusive contract period without a sale. All nine contracts stipulate that the brokerages will provide, at the end of the exclusive listing period, a list of people who were shown the for-sale apartment.

But brokerages differ on the time period during which they still get a commission if someone on the list buys the apartment from the seller. Eight brokerages set that period at three months, but the Fenwick-Keats contract is a bit more restrictive for the seller and beneficial for the agent, setting the time period at six months.

No attorneys The Real Deal talked with faulted brokerages for having contracts favoring their own financial ends; there’s nothing illegal or, by industry standards, unethical about the contracts. “The most important thing if they’re a broker selling is to get a contract to detail the terms for compensation and when the compensation is due to them,” said Dennis Greenstein, a partner at the law firm Seyfarth Shaw.

Greenstein said he has had sellers sign sales contracts, do their own sales without the broker, and then express surprise when the broker with the exclusive-right-to-sell contract asks for a commission.

Getting agents paid

The most specific aspects of the nine contracts involve payment. Nearly all, for instance, agree on the almost sacrosanct 6 percent sales commission.

Most, but not all, of the contracts examined specifically mention the 6 percent in their boilerplate contract. Coldwell Banker and Warburg are the holdout exceptions — they leave the commission amount to be filled in later. (Both Coldwell Banker and Warburg, too, were the only firms to make mandatory co-brokering explicit as part of their contracts.)

But when talking about commissions, it’s important to ask, 6 percent of what?

Fenwick-Keats and Douglas Elliman, for example, calculated the 6 percent from a total sales price that would include any household furnishings, garage, or storage space in that price.

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Meanwhile, when exactly brokers get their commission check cut differs between brokerages. Three of the brokerages — Halstead, Bellmarc, and Douglas Elliman — specify that their commissions will be due as soon as a contract is signed, even if a closing fails to happen because of a seller’s willing default.

If there are arguments and legal wrangling that arise about commission payment, brokerages have different ways of suggesting resolution.

Corcoran, Fenwick-Keats, and Coldwell Banker stipulate arbitration as a possible solution. In such a scenario, Coldwell Banker stipulates that money be set aside by the seller, and an escrow account equal to the commission amount being arbitrated is set up. The losing party in any action involving Coldwell Banker or Fenwick-Keats has to pay at least some of the legal fees for the winner.

Beyond payment, such specifications are hard to find. Things like advertising and the desired caliber of potential buyers aren’t detailed in the contracts, although Brown Harris Stevens and Halstead do specify advertising at their own expense.

Another aspect of the sale that’s left undefined is perhaps indefinable, to the chagrin of attorneys: the actual deal-making involved in selling a New York apartment.

“None of them actually say what they’re going to do to sell the apartment,” Fink said. “None of them say how they’re going to advertise. Some don’t say anything about putting the listing on their Web site. Who’s going to take photographs? Who’s going to create floor plans?”

The contracts also don’t specify what makes a potential buyer — and categorizing someone as a “buyer” is directly linked to whether an agent gets paid a commission.

Is it someone stopping by off the street during a Sunday open house? Or is it someone with thoroughly vetted financials who can afford the average sales price of a Manhattan apartment, which stood at around $1.3 million by April?

Under the contracts, attorneys say, brokerages could at the end of the exclusive time period theoretically produce the names of any people who showed up and showed interest in the apartment.

In the end, what the contracts offer sellers might merely be whatever level of expertise a broker has and the right to be listed on a brokerage’s Web site. “I think people have come to realize that most of these [apartments] just get listed along with many other apartments,” said Larry Loeb, a partner at Kramer Levin Naftalis & Frankel. “The more expensive apartments get bigger billing because the commission is bigger.”

The birth of exclusive contracts: for sellers’ sake

Ironically, the exclusive right-to-sell contracts so favorable financially to brokerages were created largely to benefit sellers. Their evolution dates from the mid-1980s through the early 1990s, a time when a lot of New York buildings were converting to co-ops, creating a lot of units to sell.

The sellers — the buildings’ owners — felt overwhelmed by the number of broker calls and buyer interest. Enter the exclusive right-to-sell, a commitment by brokerages to work laser-like on a particular sale.

“Believe it or not, prior to 1990, there was not a lot of exclusive right-to-anything,” said Neil Binder, in New York real estate since the late 1970s and co-founder of Bellmarc Realty. “It was pretty much a free-for-all. People didn’t co-broker. People didn’t do anything except go out and get listings and tell nobody, and run around.”

The recession-spurred residential market slump of the early 1990s only buoyed the appeal of the exclusive right-to-sell. Such a contract assured nervous sellers, who were watching sales prices drop, that a broker would exclusively commit to selling their apartment.

“It really wasn’t because the brokers demanded it,” Barbara Corcoran, founder of the Corcoran Group, said of exclusive right-to-sell contracts. “It was really because the consumer, the owners of the buildings, demanded it.”

Exclusives and the savvy seller

The recent real estate boom created remarkably expensive co-ops and condos throughout the city. But a stratospheric rise in apartment prices hasn’t corresponded with a rise in apartment owners’ real estate savvy, attorneys say.

“The fact that the apartments are worth an unholy amount of money doesn’t mean the people selling those apartments have the expertise in dealing with transactions of this amount,” attorney Jonathan Fink, a veteran of New York real estate law, said. “The real estate brokers, on the other hand, this is all they do.”

And they’ve had years to hone their skills. The exclusive right-to-sell contracts of today are similar to ones from years or even decades past, attorneys say. “These are probably very similar,” attorney Dennis Greenstein said, “to what I saw 20 years ago.”

Sellers, then, must force any changes in contracts before signing. Attorneys say they would advise sellers to make clear in the contracts who pays for advertising.

They would also want contractual yardsticks for the caliber of potential buyers; a broker shouldn’t be allowed, one attorney said, to claim as potential buyers just people who show up to open houses.

Sellers should also be aware, attorneys say, of whether the contract has an automatic right of renewal at the end of the exclusive listing period. None of the exclusive right-to-sell contracts obtained in April by The Real Deal from nine of the city’s biggest brokerages did; and Fenwick-Keats and Prudential Douglas Elliman stipulate that the for-sale apartment automatically converts to an open, nonexclusive listing at the end of the contract.

Perhaps most importantly, sellers should simply be aware of what they’re signing.

The exclusive right-to-sell contract is decidedly different from signing a contract that makes a brokerage an exclusive agency for a listing, for instance. Under an exclusive agency contract, a seller can sell the apartment, and not have to pay the broker anything.

“I’m not saying they’re trying to pull a fast one,” said Fink of the brokerages’ lack of explanation regarding right-to-sell. “They just don’t mention it.”

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