The Problem With Dual Agency
A dual agent is one who represents both the seller and the buyer and who should—at least in theory—have a fiduciary duty to each party. Fiduciary duty covers six major areas, according to the National Association of Realtors:
LoyaltyConfidentialityDisclosureObedienceReasonable care and diligenceAccounting
A dual agent is obligated to provide the “utmost care, integrity, honesty and loyalty” to both the buyer and the seller, and that can certainly be a conflict of interest if a listing agent who already has a fiduciary duty to the seller should bring an offer to that seller on your behalf as the buyer. How can the agent attempt to simultaneously get you the best possible price and bring the seller top dollar as well?
The Issue of Procuring Cause
The issue of “procuring cause” is the main problem here. “Procuring” is a matter of which agent brought the buyer to the table in a successful transaction, and this agent receives the buying side of the resulting commission. Disputes can arise as to whom this actually was when a listing agent shows a home to a prospective buyer who then turns around and makes the offer with a different agent. You might wonder, “Isn’t that the job—to show their listings?” Yes, an agent is obligated to show their client’s homes, but they typically show them to prospective buyers and their agents.
Multiple-Offer Situations
It only compounds the problem when there are two offers on a home. Which will be accepted? Will it be your offer or the other offer from another agent? Listing agents tend to orchestrate offer acceptance with their sellers. Your chances of offer acceptance can suffer if the listing agent is peeved at you and at your agent for “stealing you” because the listing agent showed you the home, and your buyer’s agent ultimately submitted your offer.
A Buyer’s Options
In most states, you have a right to choose and consent to the type of representation you want. You can work with:
A seller’s agent, who handles the list and represents only the seller and has no duty to the buyerA buyer’s agent, who would only represent your best interests and has no responsibility to the sellerA dual agentA facilitator, who doesn’t represent anyone but steps in only to provide logistical advice, such as how to prepare a purchase agreement
The first thing a listing agent should ask you when you call to see a listed property is whether you’re working with another agent. You can respond in a number of ways:
“We’re not working with an agent at this time, but we’ll find a buyer’s agent to represent us when we’re ready to make an offer.” “Yes, we’re working with an agent.” “No, we don’t have an agent. Would you consider representing us?”
Agents ask this question to establish an agency relationship, so any other answer is likely to get you into hot water. The listing agent should back off if you say you have an agent.
The One Upside
There is one positive aspect to looking at a home with the listing agent. The agent might tell you more about the property than they would disclose to another agent, either intentionally or by accident. They might even slip up and tell you whether the seller will accept less, although that’s against the law in most states because it’s a violation of fiduciary duty. Your best bet might be to be upfront and let the agent know whether you intend to work with them if you like the property. Don’t make the mistake of leading the agent on, even unintentionally, because it can come back to bite you.
