Commercial Mortgage Broker Fee Agreement

Aparna Iyer Jan 18, 2019
A commercial broker fee agreement clearly outlines the rights of the broker with respect to compensation and ensures that the borrower does not circumvent the necessary fee.
Real estate for business purposes can be bought by a commercial mortgage loan. The borrower uses services of a broker, who strives to find a suitable commercial mortgage loan program for the former.
However, inexperienced brokers, not having a commercial broker fee agreement, may find themselves in a situation of having to sue the borrower for unpaid brokerage. This may happen due to various reasons. For instance, the borrower may try and search for other mortgage lenders who charge lower points and decide to back out of the deal just before closing it.
The broker spends hours putting together a deal that is not closed, and to top it all, he/she does not get paid for the work that is done. Part of the reason why they are forced to have this agreement is because most lenders (read small banks) are not broker friendly. They rarely pay a referral fee and expect brokers to earn a fee outside escrow.

What is it?

A commercial broker fee agreement contains details regarding proposed financing, compensation that is due to the broker, and the fee charged by the lender. It also contains the non-circumvention clause that prevents the borrower from circumventing the broker, and applying directly to the lender who has accepted the broker's loan application for the same.
Provision for the arbitration of disputes and other borrower covenants constitute an important part of this agreement. The broker is entitled to verify the borrower's credit score, credit history, business income, assets, and other documents as deemed necessary.
The borrower is informed of the broker's limitation with respect to procuring a commercial loan at the best rate of interest, since this is contingent on the borrower's credit score, credit history, marketability of the mortgage title, and the authenticity of the documents handed over to the broker by the borrower.

Characteristics of the Agreement

  • The fee agreement of a commercial mortgage broker outlines the compensation that is due to him, for helping the borrower procure a commercial mortgage loan for the property under consideration.
  • He is entitled to a processing fee that is non-refundable, irrespective of whether the proposed transaction is completed. The fee is payable to him, once the lender agrees to finance the property in accordance with the terms laid down by the borrower.
  • He is also entitled to a commission, calculated as a percentage of the loan amount, irrespective of the closing costs or points paid to the lending institution. Considering that the borrower pays points for procuring the loan at a favorable rate of interest, it's only fair that the broker's commission should not be influenced by the decision of the former.
  • This agreement also ensures that he does not lose his/her share of the commission, if the borrower fails to appear at the closing, despite the lender agreeing to close escrow.
  • Although, he is allowed to work with other co-brokers and share the commission as deemed appropriate, he cannot evade brokerage by working with a co-broker or with the lender who has accepted the broker's loan application.
  • The borrower is not allowed to fill out another loan application or withdraw the original loan application without prior consent of the broker for a period of 36 months from the date of the agreement. Else, he is entitled to the full amount of commission, regardless of whether the borrower actually procures the loan.
It is evident that the fee agreement needs to be detailed and plug all the loopholes that may allow the borrower to evade brokerage. It would be prudent to consult an attorney, who is knowledgeable about commercial mortgage transactions for further details.
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