I don't believe collecting commission has anything to do with the laws of agency, it has to do with how you are representing the client and the "statute of frauds" requires that any contractural agreement of represenation be in writing or it is not enforceable.

I just went through a rather complex agency representation situation and perhaps it provides an example of the difference. I turned a FSBO into a listing, but there was one exclusion. The exclusion was a Buyer who had signed an EBA with me. I was also representing the Seller in another tranaction in which she had signed an EBA for the purchase of a home. Both parties had signed Dual Agency consent forms (because agency runs to the firm, not the sales agent).

My Buyer, as it turns out, decided to purchase my listing. This was not a Dual Agency/Single Agent situation because the Buyer was an exclusion. I had to explain to both of them that in this particular transaction I was representing only the Buyer. Neither my firm nor I could represent the Seller on this transaction.

I hate exclusions, but sometimes with FSBO's the Seller really is the procuring cause of the sale, not the broker.

broker: Christmas got in the way of responding to your December 19 post, but I now want to come out with both guns blazing against your opinion that you can act as an EBA -- and call yourself one -- when looking after buyer clients who need to sell something.
Not on your life, you can't!
You can act as a Buyer Agent in helping them find "the one right house" and you can also act as a Listing Agent for whatever property they need to dispose of. Indeed, in each case, you're establishing an agent/client relationship. On the one hand your aim is to get your client "the most house for the money" and on the other hand your job is to get them "the most money for the house."
So help me, though, you have no legitimate claim to being an Exclusive Buyer Agent in the process, at least not if you're being true to the principles of agency promulgated by NAR and CREA. Nor, most particularly, are you honouring the definition and explanations put forth by NAEBA (see their wesbite at http://www.naeba.org/ ).
As my December 18 post said, the idea of agency is far from being properly understood, but the test lies in the word Exclusive, which means the non-inclusion of anything else.
I won't say I blame you for rationalizing the idea that you can have things both ways, if only because this has been the attitude of traditional brokerages from the beginning to the EBA concept. If I can mix my metaphors, they don't have the courage to focus on just half a loaf but want to have their cake and eat it.
Well, no reason why they can't or shouldn't.
But, for the sake of absolute clarity, let's not have them -- or you -- deciding that your exclusivity rests on the fact that you are only trying to help someone buy something. It just ain't so if, the moment it becomes necessary, you'll doff a listing hat as well.

Duncan

I agree with Duncan! I can call myself an Exclusive Buyer's Agent because the broker I work for doesn't allow listings...period! When I meet with a potential client I can honestly say that working with me means that I only work for them, never any seller. My clients know that they'll never have to worry about dual agency or even split agency as we call it here in Ohio.

It's amazing how EBA is catching on with the consumer. I've had a number of clients who initially contacted me or my company because they wanted an EBA. As the consumer becomes more educated, they'll start demanding it more...much to the horror of those who like to have their cake and eat it too.

Doug, Can you make enough money as an Exclusive Buyer's Agent? I have seen brokers try to do that around here, but none have succeeded. Listings are still the only way to make decent money in Connecticut. You would think the consumer would want exclusive representation for their buyer needs, but around here consumers are not clamoring for it.

Gail, yes you can...it's all in your marketing. In my first year as an EBA I had 14 transactions representing only buyers. My broker, Revealty, is very good at marketing the Exclusive part. Also, I've found that people who are relocating are much more comfortable working with an exclusive buyer's agent.

Did I leave some money on the table by not doing listings? Yes, I referred out 3 listings this year, but I had them as buyers so I still made money and didn't have to compromise my integrity as an EBA. And no, I didn't take a referral fee, I simply negotiated a lower listing commission from the listing agents, saving my buyer's money.

I tell my buyers that when they're ready to sell they should call me first because I can save them money...

broker: To give you some benefit of the doubt, perhaps you can call on the Exclusive word because your client has agreed to use you and you alone as their Buyer Agent. But herein lies some of the confusion that abounds when it comes to properly understanding agency. Indeed, when you and I say exclusive, do we, ahem, mean exclusive or do we mean exclusive? There is a difference!
Gail: To add to Doug's reply, let me say that I not only make a living as an EBA. I'm actually doing at least twice as well as I did when I worked for traditional (i.e. listing and selling) companies.
You do have to take a different approach to finding prospects, because you don't have any listings to advertise. Thus, you have to promote the idea that your entire focus is on working solely for buyers. There are decided benefits to the client and you need to identify them and explain how a traditional company agent who's acting as a Buyer Agent will NOT serve them as objectively or, for that matter, as well. In effect, the subtle difference is that you're not there to simply sell them something. Rather, your job includes an assurance that you'll stop them from buying something that isn't right. This implies that you'll help them find the one best house, regardless of which company or agent has it listed or even if it isn't listed at all (e.g. per expiries and FSBOs).
The one indisputable point in your favour is that, as an EBA, you truly are different from almost all your competitors. For instance, there are only about 3000 EBAs in the US -- which means a mere 3% of agents. Here in Canada there can be no more than few hundred -- and I know of only three of them apart from myself! (In fact, I'm the only one of my kind in some 900 agents who serve my particular geographical area.)

Duncan

Doug and Duncan, I wholeheartedly agree with the concept and I've seen the marketing for this done well here, but for whatever reason it still hasn't caught on in this area. Perhaps that will change in time.