Agents who have participated in a short sale transaction knows there may come a moment when the lender announces a reduction in the commission it will approve as a condition of accepting an offer. A great deal of angst circulates around this issue because, despite what the seller agreed to pay in the listing agreement and notwithstanding the advertised SOC, the transaction cannot close without the lender’s approval which is often a “take it or leave it” position. The seller and buyer want the transaction to close and agents do not want to be a road block to that outcome. Balanced against this is an agent’s and broker’s need to earn a reasonable income and justify their own expenses and liability incurred in a transaction. If lenders condition acceptance of short sale terms on agents’ willingness to accept a reduced commission, agents really have no power – except to decline to list, show or write up deals on short sale properties in the first place (as Redfin does).

Fannie Mae was made aware of this pattern and the adverse consequences of agents and brokers avoiding short sales. As a result, Fannie Mae announced a revised policy that took effect March 1. Now, “closing of preforeclosure sales may not be conditioned upon a reduction of the total commission to be paid to real estate agents to a level below what was negotiated by the listing agent with the borrower, unless the fee exceeds 6 percent of the sales price of the property in aggregate.” This policy applies to Fannie Mae loans only and only to those loans where the borrower is in default. Nevertheless, it should give agents and brokers a degree of comfort in knowing that the agreed and earned commission will be paid on many short sale transactions. For a property secured by a Fannie Mae loan, where the seller is in default, the lender may no longer condition acceptance of buyer’s short sale offer on the agents’ and brokers’ agreement to reduce their commission below a total transaction commission of 6%.

The new Fannie Mae policy says the following:

Servicing Guide, Part VII, Section 504.02: Contacting Selected Borrowers

Effective March 1, 2009, closing of preforeclosure sales may not be conditioned upon a reduction of the total commission to be paid to real estate agents to a level below what was negotiated by the listing agent with the borrower, unless the fee exceeds 6 percent of the sales price of the property in aggregate. Servicers are reminded that they must continue to obtain any approvals that may be required by interested third parties in connection with preforeclosure sales.

The federal government realizes that a less than 6% real estate commission may hinder the sale of a property and this reality might spur a conversation with other sellers about sales commissions of less than 6% for non-distressed properties too.

(And watch for a major press release, a Q-and-A on Tech Flash and a guest column in Tech Crunch announcing Redfin’s new Short Sale policy….)