Virginia Association of Realtors Non-Exclusive Buyer Brokerage Agreements
Updated: May 9
In this article, I'll be going over, in brief, the Virginia Association of Realtors (VAR) buyer brokerage agreements in chronological order. This form is still present as of today, 2/5/23 in the 7/19 version. The below is not a full summary but provides more details where beneficial.
For a deeper dive into buyer brokerage agreements, go here.
The buyer brokerage terms include:
Exclusive or Non-Exclusive
The VAR buyer brokerage agreement has options for exclusive or non-exclusive & you'll see it clearly labeled at the top of the form.
While not possible with all agents, with me, there are options to pick which one you want. Non-exclusive agreements are discouraged by my brokerage, but it's not unusual for me to do them.
Parties & Start Date of Agreement
Buyer brokerage agreements are not made between buyers and individuals but between buyers and the brokerage that the agent is part of.
Property Type (or address)
Examples include residential, commercial, or a specific property address.
2. Term
My brokerage has a minimum policy of 90 days. If that sounds too long to you, let me know, and I can ask management about a shorter timeframe.
3. Broker's Duties
The agreement doesn't go into great detail regarding broker's duties in section 3. For more details per Virginia law, go here.
4. Buyer's duties
The section mentions your availability to see properties during "broker's regular working hours". My typical showing available times will be 9-5 and 6-8 Monday-Saturday unless I already have another commitment. I take Sundays off save limited urgent matters. In some cases, I can be available (Mon-Sat) from 6-9 AM, 5-6 PM, & 8 PM-10 PM If I do already have another commitment. If I have another commitment when you want to see properties or you want to see property on a Sunday, I can typically arrange for a showing with another experienced agent at my firm if desired. Also since I take off Sundays, Mondays & Saturdays are my busiest days.
5. Compensation
In the vast majority of cases, the seller will pay the buyer's agent commission. The amount that they will pay is most often on the MLS (Multiple Listing Service) listing for the property, with most listings being sold being on the MLS. In many cases, buyer's agents also charge buyers for a transaction coordinator fee. I do not charge that for buyers I am helping with home purchases, opting out of using a TC, giving my buyers a more personalized experience where they are not dealing with as much of an assembly line of people and where I help them save the money, especially in cases where that money is not able to be negotiated for the seller to pay on top of other costs of closing (typically a flat fee of around $400). One of the few cases where I would charge a buyer I am representing is when they buy a property that does not offer a buyer's agent commission. In that case, I would typically charge a reduced commission of 2% (or $3,000, whichever is greater, though if you are receiving a rebate, that minimum can be higher) when the standard for residential is 3% (with commercial the buyer's agent commission is usually between 3% & 5% but I still only charge 2%), where even most banks with foreclosures pay that amount to buyer's agents. Among those on REIN MLS (the primary MLS of Hampton Roads for residential single family property), <3% had <2% commission when I checked last. While rare, with me not having helped any buyers purchase property with no buyer's agent commission at the time of this writing after 6 years in the business, there are still cases where a seller not being willing to pay any buyer's agent commission does happen. One of the most common examples is for sale by owner property (Around 5%-10% of listed properties in our area: 5% if combining unique properties from Zillow, Trulia, Fizber, FSBO.com, Forsalebyowner.com, Craigslist, & 4salebyowner.com [Realtor.com has no FSBO's] for a sample I pulled from Newport News), but I have also seen where a listing being sold by a real estate agent, that wasn't even listed online anywhere I could find, offered no buyer's agent commission. One way to get around this without having to pay me directly is to negotiate a buyer's agent commission as part of the negotiation process in the rare case that one is not offered. I have done this before with a FSBO. It is extremely rare to find these properties on the local MLS where no buyer's agent commission is being offered; they are more common on 3rd party sites for those properties that are not auto-populating on those sites from MLS. In the case of <3% of properties on REIN MLS (the main MLS of Hampton Roads) the last time I checked, they offer <2% commission, & I would suggest making an offer in most cases where it would bring the commission up to 2%. While most properties on Zillow, for instance, can be found on the MLS, those that can't are often for sale by owner properties, and among those, a decent number of them do not offer a buyer's agent commission.
Even in rare cases with properties where no buyer's agent commission is being offered, and where the seller is unwilling to make a concession for a buyer's agent commission, I still typically recommend that buyers use a buyer's agent.
6. Dual/Designated Agency
While I can help you purchase with a for sale by owner seller, I don't perform dual agency, where 1 agent acts as a middleman between buyer and seller & attempts to represent both. It is fraught with issues & I prefer to represent exclusively your interests rather than the interests of the seller besides legal obligations & ministerial acts. I do perform designated agency at times, where I work with other agents at my firm on the same transaction with other agents on the other side of it representing the other party.
7. Disclosure Regarding Dual Agency
If you ever wanted to see a property that I have listed, we would need to go over possibilities for that prior to showing. It's best to arrange prior for the seller to be represented by someone else or for you to be represented by someone else, depending on the scenario. There are some pros and cons to me shifting sides, but often I'll have my dad represent the other side if I encounter a scenario where a buyer wants to see a property I am listing. He's helped buyers and sellers to close on thousands of properties, possibly more personally than anyone in SE VA alive, and is an incredible resource. I more often get the seller to shift sides than the buyer. In case you never want the possibility of me switching to the other side, that can be written into the agreement.
8. Recordings within the property
Most agents won't ask listing agents about if pictures/video are permitted prior to walking into showings, with some exceptions if they are planning on doing a virtual showing, but even then, often they won't receive proper permission. Here's where I go into detail on pictures/video in property, which is geared toward sellers and listing agents, but typically shared on behalf of buyers I represent, explaining to listing agents about why I am asking about pictures/video for personal reference in case they want more details.
A part of my standard operating procedure is to request from listing agents (or sellers if a for sale by owner property) about if we can take pictures/video for personal reference. Sometimes they'll say yes, sometimes they won't answer even after I repeat the question, sometimes they'll say no, and sometimes they'll say yes with certain limitations (i.e. no personal property shown or yes to live video but nothing recorded). On my buyer property notes spreadsheet I have a section for whether or not we've been authorized to take video/pics for personal reference. These should not be posted on social media or other locations publicly (unless you buy a property and are posting after it closes). If you ever want to post pictures publicly before then, we should get permission from the owner for public showcasing. Often they won't be willing, but there are some exceptions.
9. Miscellaneous
10. Electronic Signatures
11. Wire Fraud Alert
12. Other Terms
Signatures & Broker Information
On the right I share the information of my principal or managing broker.
Related:
GRP Exclusive Right to Represent Buyer
Legal Duties of Buyers' Agents, Per VA Law
Legality Regarding Buyer Brokerage Form Prior to Showings in VA
For the full brokerage agreement without some of the typical revisions I do, here it is, though be sure to look for any differences between the below and the actual agreement I send you (i.e. strike throughs of language & redactions added outside of the paragraph, input in section 1, 2, 5, & 12, etc.:
