Short Term Sales Pressures of Public Real Estate Companies Could Produce Fiduciary Breaches – Real Estate Company

There are only two aspects of perfect agency: No Conflict of Interest and Legal Fiduciary. A client seeking to be represented by an agent in real estate is – in fact and deed – seeking absolute assurance of the highest degree of agency, better known as legal fiduciary. Rarely is a client seeking or agreeable to any watered-down weakness of agency such as is found in dual agency or transaction brokers. And in real estate transactions which require many versions and levels of back and forth negotiations, only the highest level of duty to fiduciary should be brought to bear. It is extremely easy for the imperfect and weak human to violate – either knowingly or inadvertently – this level of fiduciary owed to the principal.Conflict of Interest is one cause of reduced fiduciary, and conflict of interest can also come in numerous shades and from strange quarters. “Visible” conflict (we’ll call it) comes in the recognizable form of a landlord’s agent simultaneously representing a tenant with his own landlord (while the tenant believes it is the protected party). “Invisible” conflict can come in the form of two agents working together to form a transaction not within the framework decided upon by the principal. And now there is a new conflict player on the field, and it is the most insidious of them all: “Short-Term Sales Pressures”, where typically publicly-traded real estate brokerage companies face ever-increasing demands of stock price performance based on underlying revenues. It is one thing for market pressures to invigorate commodity sales like soda, beer, cars, etc.; it is another thing altogether for market pressures to invigorate revenues (sell more faster) in an environment where fiduciary and agency are the root of the service.Jonathan Hsu, CEO of New York-based 24/7 Real Media puts is precisely, “public company executives [are] more short-term focused [on] quarterly earnings targets.” And Micky Drexler, former chief executive of Gap Inc. and AnnTaylor Stores describes the day-to-day life in a public firm when he was quoted saying, when you run a public company “you have a gun to your head.” These pressures are forced down to regions and individual offices – even to day-to-day and individual transaction levels. The demand for revenues and how that demand is pounded down the channel to direct client interaction, this author believes, is a prospect wrought with potential self-serving; a perfect cocktail to invite breach of fiduciary in the name of “inking the deal.”Using the best example of fiduciary as law firms, the ABA Model Rule 5.4(d) would clearly prevent the publicly traded law firm from existing within the United States. In an article by Kwabena Appenteng of Greene and Letts (Feb. 4, 2009) she states, “The sheer pressure added by shareholders may cause firms to operate in a manner that works best for their shareholders: maximizing short-term profit by becoming involved in deals (see Enron and Bernard Madoff).” She continues, “Such “practicing to the share price” could cause firms to become too focused on the quarterly earnings statement and less concerned about adhering to the rules of professional responsibility.”But in another industry governed by statutory agency and fiduciary law – real estate – large public companies practice every day. And as they are in a “sales” business, it would be difficult to believe that the local sales manager would be immune from corporate pressures to increase sales revenues.┬áThis author is dubious of the noble integrity oft pronounced of these companies objectivity and to stand pure in the face of demanding stockholders. Representing more clients is one thing. Influencing clients in any way to feather their own nest is another.More precisely, most organizations function with two distinct areas of Sales and Operations. In real estate, Operations are where the brokerage activities occur – where the daily representation of clients, negotiations, lease documents, sale contracts, reside. Sales would then be the promotional activities of the company, seeking new clients via marketing and solicitation. Where the client’s fiduciary gets vaporized (or is at real risk of it) is when the pressures of the Sales area of the real estate company (sale manager) directly attempt to influence the increased or improved outcome (money and the swiftness of its receipt) of the Operations (where the agent must be immune from such undue influence). In the presence of any undue influence on Operations has the direct negative impact on the agents responsibility to remain objective and represent the client with zero conflict. To say the least, any client who has an agent who is being influenced by its sales management for increased revenues will seek to impart that influence on the client’s transaction – increasing the clients cost upon which the transaction fee is based and or closing a transaction faster to satisfy the sales management.Large, publicly-traded real estate firms have substantial demands on meeting the demands of the shareholders to increase fees faster. When seeking tenant representation or any form of real estate representation), the best course is to seek the superior talent, governed by absolute fiduciary, and trusted to maintain agency, with zero potential for any form of influence whether, visible, invisible, flagrant, insidious or tainted by the possibility of “practicing to share price” or the demands of internal sales management. Law firms don’t do it. Clients should seek out real estate firms that don’t do it either.