So…you listed your home for sale after doing the thousand things YOUR agent suggested. You made it available to show on a minutes notice for several months. YOUR agent was by your side the whole time offering advice and guidance. Showings happen, rumors of offers, finally…an offer materializes!
YOUR agent lets you know it’s someone he or she showed it to. Now what?
YOUR agent did their job. They listed the home for sale, and marketed the property to locate a ready willing and able buyer. Now is when you need someone to tell you what you should do. Good thing you hired a REALTOR. Or so you thought.
The following is the DUAL AGENT TANGO that would get you voted off “Dancing With The Stars”!
At some point during the discussion with every buyer, there will be a question asked by the buyer that will be considered a substantive question about the property or the possible transaction. A listing agent who is showing the home and gets asked that question needs to stop and inform the buyer THEY represent the seller as a client and if the “customer” is represented by an agent. This assumes the buyer called from an ad or sign or some other introduction. Sometimes an agent will be asked to find a house, but they are probably urged to have representation so they are hired via a Buyer Agency Agreement-every state and every REALTOR or agent has one in one form or another. It is a contract and should be understood completely before signing.
A customer is an unrepresented party. When a listing agent shows a customer buyer a home and they want to write an offer, it can be done. The agent goes into a brief discussion of agency and says don’t worry. I can “represent” you as a customer and work with you to write an offer. The seller (client) hasn’t agreed to this as of yet. The buyer as a customer though has no representation. The agent cannot advise them at with regards to price or terms of an offer. Fair enough-the buyer has to say write this, these are MY terms. If the buyers asks for a suggestion or If the agent so much as hints to a suggested term-anything-they would be considering the cardinal sin of REALTORS, performing undisclosed dual agency.
Another option is the buyer and seller are convinced that dual agency is the best way to go. The agent ultimately “represents” neither party though so neither party can benefit from the agents knowledge of real estate negotiating or contract writing skills. All laws must still be followed but that’s the easy part. They have to be followed regardless. But the terms of an offer are critical now and all the way through closing. Advice and expertise may be needed-make that always needed right through closing and even after.
Now the tango. A friend of mine had this happen to them. A neutral agent was selected to help them through a life situation. This agent listed their home and represented them as a client. At some point an offer was made by a buyer the listing agent brought to the home. I’m not sure what the relationship was between the buyer and agent prior to seeing the home-perhaps no relationship existed. But in end, you’ll see the point and result of whatever relationship they had. A price and terms were agreed to including a home inspection. Ultimately, some things were found on the home inspection and the buyer decided to terminate the contract within the terms allowed and agreed to at the onset.
Did everyone get the representation they were expecting? Did the seller and buyer agree to agency terms that were presented completely? Did the buyer get any counsel on what terms they should write to protect them? If the agent represented the seller as a client, could they go back to the buyer and advise them they could “walk away” based on the terms of the home inspection? Could they walk away-did the agent leave the seller vulnerable by not presenting terms more favorable to them? As a dual agent, the agent represents no one egually.
There are a lot of “what if’s” in just this one scenario. I do not know what relationship they all shared. The agent may be sworn to protecting the seller or buyers confidentiality, but my friend is not. At some point he might want to call or cry on my shoulder. The important thing is that each side has an option at the onset to have their agent represent them and them alone. The seller clearly already established that relationship. Was it abandoned in favor of potentially earning double the commission? Who knows. Was the buyer acting solely on their own, receiving NO advice from the agent? Could the transaction have been salvaged?
At some point a question was probably asked from one side or the other…what should we do or what do you suggest? If the agent represented neither party, why in the world would that service be worth $20,000-$30,000? The agent could easily have referred that buyer to another agent so he/she could stay by my friends side-fully representing them. The agent could have said NO, I cannot write your offer-but another agent can. It’s doubtful the buyer would have argued that was not okay with them. Was the agent worried another agent would out negotiate them? Was the agent motivated in any way by money? Did the agent gloss over the possible agency relationships at the beginning? Who knows….
But a strong, professional and committed REALTOR or agent will say NO- I cannot work for two people effectively on the same transaction. If I establish a buyer agency agreement with a buyer first, who then wants to by a home I just listed who do I choose to abandon or should I have to? TOUGH-TOUGH-TOUGH scenarios exist in real estate and you should have someone to advise you on almost every element even beyond closing. Buyers and sellers need to get full disclosure and that might mean you don’t earn a commission but isn’t it the clients and customers we should be concerned with most?
Ultimately this deal failed. The buyer walked on a home inspection term. The agent (dual agent) couldn’t negotiate for either party or advise either person how to work it out. My friend made plans to vacate the home and moved out, anticipating this chapter of his life was now over and he could move on. Or so he thought…
Maybe it would never have worked out. That happens. But when the agent has to sit on the sidelines without be able to offer professional experience and guidance to at least one person, it will never end good for either person.
This is written from a Virginia REALTOR perspective. Agency laws are different in every state. Not all agents are REALTORS who have to follow a Code of Ethics standard that in many cases is higher than state license laws.
Filed under: Buyer agency, Buyer and seller representation | Tagged: dual agency, real estate advice, real estate agency, seller representation | Leave a Comment »