Dual Agency

Tightrope

I don’t think it’s possible to write this post without including at least some rudimentary language about how the State of California views agency.

      1. Seller’s Agent  A seller’s agent under a listing agreement with the Seller acts as the agent for the seller only. This agent has “A Fiduciary duty of utmost care, integrity,honestly and loyalty in dealings with the Seller.” To the buyer, among other things, the seller’s agent has duties of honesty,fair dealing, good faith and disclosure.

      2. Buyer’s Agent  A Buyer’s agent agree’s to act as an agent for the Buyer only. Even though the commission is paid by the seller the Buyer’s agent acts only for the Buyer and has “a fiduciary duty of utmost care, integrity, honesty and loyalty in dealings with the Buyer”. The duties to the Buyer are also the same as stated above for the seller’s agent.

      3. Dual Agency   A real estate agent can legally be the agent for both the buyer and seller as long as they have the knowledge and consent of both. A Dual agent has “a fiduciary duty of utmost care, integrity,honesty and loyalty in dealings with both Buyer and Seller”. All other duties mentioned above apply to the dual agent as well.

There’s plenty more boilerplate about this on a common disclosure we all use, if you really would like to read it all please let me know and I’ll send it to you. Dual agency also technically occurs when one agent from a given firm brings an offer on a home listed by another agent from that same firm, but I’ll save that discussion for another time. Over the years I’ve seen lots of buyers walking into Open Houses I’ve held on my listings with the intention of working with me as their agent on the sale of my listing. Some buyers believe that they’ll be in a better negotiating position, and thus get a better deal, if they search on their own and try to get their offer presented by the listing agent. Since I work with both Buyers and Sellers I have, on occasion in the past, acted as a dual agent. My experience with it is that, going forward, I’ll only do it again if I absolutely have to. Most people think that agent’s salivate over the idea of handling both ends because it means double the commission. Of the times I’ve done it the following things have happened: a) I threw in plenty of commission to make the deal work. b) I did make more than I normally would have though and c) I constantly had the feeling that neither the Buyer or the Seller completely trusted me. This last one is the biggest problem…I don’t like that feeling at all! As an agent you’re on a tightrope trying to balance the needs of everybody in a situation where there’s natural friction and sometimes it’s like negotiating a Middle East peace treaty. Early on in the multiple offer frenzy game I did it twice representing buyers on my listings…and I promise you I’ll never do that again. Not only do Buyer and Seller not have the trust they should have, but the other agents were cranky with me too. The fact was that everything was on the up and up! No matter how cautious an agent is about fairness somebody’s suspicious. The only time that I’ve seen this work smoothly was when there was no other competition and the buyer and seller actually knew one another beforehand, but that’s certainly going to be rare at best.

In this current real estate market where so many agents are struggling to make a living (remember, 53% of the San Mateo Board of Realtors sold 2 or less properties last year) a buyer who seeks a dual agency relationship because they think they’re going to get a better deal is most likely mistaken. Experience is the best teacher and it’s taught me that a buyer should always have their own, separate, advocate. Way too many things can come up, both before and during an escrow between a buyer and seller and you’ll need someone who clearly is interested in your highest and best as their top priority…not additional commissions for them.

Comments

  1. My husband and I went through this with an agent in St. Louis years ago…it was a nightmare! We would never do it again…good advice, Jim!

  2. Long, but good article- worth the read. Keep up the good work here!

  3. Never at a loss for breath. Thanks for the compliment!

  4. Jim … I couldn’t agree more. You should try it with a sex offender disclosure issue in the middle! It’s good to read your post. Thanks.

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