Q: What is “dual agency?” We have signed a contract to list our home for sale. Now the real estate company wants us to sign a dual agency agreement. What should we do? – N.J., Snohomish
A: Real estate agency law has evolved a great deal over the past two decades. In the old days, real estate agents always worked for the sellers. They had a responsibility to get the best price possible for the sellers of the homes they were showing.
But this caused a lot of confusion among home buyers, who logically assumed that the friendly real estate agent who drove them all over town every weekend was actually working for their best interests and not the sellers.
In fact, the real estate agents often felt the same way, because they spent most of their time with the buyers, but they were legally obligated to represent the seller’s interests when writing up a purchase offer.
This all changed in 1987, when the state passed a law that required real estate agents to disclose in writing who they were representing in a transaction. Purchase and sale agreements contain language something like this: “At the signing of this agreement, the selling agent represented … Each party signing this document confirms that prior oral and/or written disclosure of agency was provided to him/her in this transaction.”
For the first time, home buyers were given written notice that the agents with whom they were working were, in fact, representing the seller.
Since this didn’t go over well with some home buyers, a few real estate agents starting working as buyer’s agents, representing the buyer rather than the seller. Once they disclosed that they were representing the buyer, these agents were free to try to get the best deal possible for their clients without violating a fiduciary responsibility to work for the seller.
They would try to get the lowest price possible and negotiate the best possible purchase terms for the buyer. Over the years, more and more real estate agents began to work as buyer’s agents until it became the most common type of agency.
Today, real estate agents typically represent the buyer, unless they listed the home. Listing agents always work for the seller, because that is what they are being paid to do. However, other agents from the listing agent’s office may show the home as buyer’s agents and represent the buyer’s interests in the transaction.
In some cases, the listing agent acts as a dual agent representing both the seller and buyer when the agent produces a bona fide buyer for a home which he or she has listed for sale. However, this must be disclosed in writing and both the buyer and seller must agree to accept the dual agency role of the agent.
I assume that is the kind of agreement you are being asked to sign, so that the agent listing your home can also represent buyers who may wish to make a purchase offer. This is not really a problem as long as everybody understands and agrees that the agent is representing both parties. For example, don’t tell the agent that you are willing to accept a lower offer for your house if you don’t want that information to get back to the buyers.
If you don’t want to accept dual agency, state law allows real estate agents the option of representing nobody in the transaction. They can simply act as a facilitator without a fiduciary responsibility to either the buyer or the seller in the transaction.
So the bottom line is, as long as everyone agrees, the agent can represent whomever he or she chooses – except for listing agents who are contractually bound to represent the seller’s interests on the properties they are marketing.
Mail your real estate questions to Steve Tytler, The Herald, P.O. Box 930, Everett, WA 98206. Fax questions to Tytler at 425-339-3435, or e-mail him at firstname.lastname@example.org
Steve Tytler is a licensed real estate broker and owner of Best Mortgage, Inc. You can visit the Best Mortage Web site at www.bestmortgage.com.