Misconceptions Regarding Multiple Listing (MLS) In The Spanish Property Market

A recent article in eyeonspain.com prompted me to write this article as reading the aforemetioned piece highlighted many of the mis-conception that have grown up in Europe regarding Multiple Listing and the inherent benefits to both clients and agents.

The first mis conception is what MLS actually is. Multiple Listing is a form of Agency contract. The most common agency contracts that you may have come across in the UK are sole agency and open agency, where the vendor, (seller) enters into a contract with an agent to sell their property under various terms and conditions. In the same way, a Multiple Listing Agency contract gives the listing agent the right to market the property through other co-operating agents as well as to the public in general.

A listing contract is a form of employment contract between the owner and the listing agent. The terms and conditions of the contract relate solely between the two parties. This includes the commission that the vendor, (seller) is willing to pay the agent for producing a buyer for the property.

"Some MLS systems effectively add over 9% to the desired selling price of a property in Spain. That's just outrageous. If I want 200,000 Euros for my property then on an MLS system it could effectively be listed at 218,000. 18,000 Euros in commission seems an awful lot of money!"

In the above quotation from the eyeonspain article, any organisation that imposes a commission outside the terms of the listing agency contract is acting as an agent and not as an MLS. The MLS service provider may charge a fee to the agent for use of its database and allowing them to list their properties on it, but does not charge any additional cost to any member of the public using the service. Any website or service provider that does this is acting in the capacity of an agent and should not be considered an MLS.

In relation to the two systems quoted, I can state as fact that 'Infocasa' does not impose additional fees to potential buyers and as far as I am aware the IN Network is now operating as a single agency.

One of the other points mentioned in the article was that having two agents involved in a single transaction was at the detriment to the buyer. This I would suggest is one of the main benefits to an individual looking to purchase a property in Spain.

Having travelled to Spain to purchase a property under a decidely different legal system I find it a distinct advantage to have an agent acting seperately for the interests of the buyer, rather than relying on the information from an agent who has a contractual obligation to the seller and a financial interest in completing the transaction.

The main source of problems in property transactions in Europe arise due to the direct conflict of interest that a 'one agent' transaction occurs. Who's interests does the agent act for in such a transaction? In a mature MLS property market such as the USA, single agent transactions, whilst rare, do still occur. When they do however, they are governed by much stricter rules to avoid the conflict of interest. In Spain, I would suggest, that having an agent act for your interests, seperate to the agent contractually obligated to the seller helps avoid conflicts and provides avenues of direct responsibility.

Ideally, a prospective purchaser should sign a Buyer Agent Agreement outlining the agents responsibility to the purchaser and the terms under which the purchaser agrees to pay his fee. This fee is usually negated by the sharing of the listing agents commission, but can be seperate.

The agent acting for the buyer then has the responsibilty of finding the most suitable property for the client and negotiating the best possible price for his client seperate from any responsibily or contractual obligation to the seller. Surely this is a much better scenario than being left to the control of a single conflicted agent.

It is not surprising that the article tries to criticize this system. In the UK, property transaction have always been governed under the one agent system with responsibility being thrown onto the buyer, not only in terms of the 'Caveat Emptor' rules or 'Buyer Beware', leaving sole responsibility on the buyer for determining any defects in the property. But also in terms of determining whether they are purchasing the property at the best possible price.

Another major benfit of a Multiple Listing Service is the ability to make direct comparisons of price against the available property on the market. This helps highlight any single property that may be overpriced as well as providing a choice of altenative comparable properties for a purchaser to choose from.

In conclusion I would say that the problems lay not within the way Multiple Listing Agency works, but in the understanding of what Multiple Listing is and how to decipher what is and what is not a proper Multiple Listing Service. It is also a matter for a prospective purchaser to decide under what conditions he or she wishes to enter into a property transaction and what level of responsibility they want to take themselves, or defer under contract, to an agent.

I believe that the underlying problems to be found in the system however, lie more in the non-regulatory nature of the market than anything else. With European harmonisation of contract law now in force, maybe a European wide directive imposing standard binding agency contracts would go some way to addressing the issues.