The recent discussion stirred up by Rob Hahn’s piece, “A Modest Proposal: Bring Back Subagency,” hit a nerve,not because I necessarily agree with everything he said, but because it made me think. As someone who’s long been a supporter of buyer agency,especially the idea that buyers deserve representation,I have to admit, Rob raises some points that are hard to ignore. Especially when it comes to the reality that many agents, despite their good intentions, don’t fully grasp what fiduciary duty really means.
Let’s be honest: fiduciary responsibility is a big deal. It’s not just a label,it’s a legal and ethical obligation that should guide every move an agent makes when representing a client. But Rob makes the case that the “buyer agency experiment,” as he calls it, has failed not because it was a bad idea, but because it placed a burden on agents that many simply weren’t prepared,or trained,to shoulder. And that’s hard to argue with when you look at some of the practices that led to the lawsuits and settlements that have upended our industry.
Here in Missouri, we’ve been at the epicenter of these changes. The Sitzer/Burnett case started here. And Missouri law has long leaned toward clearly defined, documented agency relationships. Even before the NAR settlement, our statutes required a signed buyer agency agreement before an agent could provide representation to a buyer. Without that written agreement, the default relationship isn’t subagency, it’s actually transaction brokerage. That means the agent doesn’t represent either party and is simply facilitating the transaction. So while there’s been renewed national discussion around subagency, in Missouri, it hasn’t really been in play for some time. That said, with today’s tighter requirements on buyer agency agreements, some in the industry are starting to wonder if subagency, properly disclosed, might make a comeback here too.
The funny thing is, my buddy Darrell, a lifelong real estate broker here in Missouri, has been saying since the settlement was announced that we ought to just go back to subagency. At first, I thought he was way off base. But the more I think about it, and the more I see agents scrambling to adapt to buyer agreements, shifting compensation, and confused clients, the more I’m starting to understand where he’s coming from.
Now to be clear: I still believe buyer agency, done right, is the best way to protect homebuyers. It ensures they have an advocate, someone truly in their corner. But “done right” is the key phrase. If agents are entering into fiduciary relationships they don’t understand, that’s a liability, not just for them, but for the consumer too. In contrast, subagency isn’t necessarily bad,as long as it’s fully disclosed. That’s the part too many people forget. If a buyer understands that the agent showing them a home is actually working for the seller, and they agree to that in writing, there’s no deception. That’s legal, that’s transparent, and that might be the better option in some cases than entering into an agency agreement that no one truly understands or honors.
Rob suggests we give buyers real choice: hire their own agent and pay for it directly, or work with a seller’s subagent and understand the trade-offs. I don’t know if we’ll go back to that model wholesale, but I do think this conversation needs to happen. Especially here in St. Louis, where the real estate landscape is already different than much of the country,just look at our local practices like split closings. We don’t follow national trends blindly, and maybe we shouldn’t this time either.
In the end, what matters most is that buyers and sellers understand who works for whom, what that means, and what they’re paying for. Whether through buyer agency or subagency, the goal should be transparency, accountability, and clarity,something our industry hasn’t always delivered well. But now’s our chance to do better.
And if you’re navigating these changes and wondering how they affect your real estate goals, working with a knowledgeable professional from MORE, REALTORS® can help you make sense of it all.
