I’m not really a Jesuit, I just play one in the blogsward. My mother had had enough of the Church before she went to high school, and, in consequence, I was sent to public schools. Those were actually quite a bit better then than they are now, but, even so, I bear my ignorance as a curse. I am too much aware that I am too much unaware, and every effort I make to correct this deficit serves only to deepen it. This is why I spend so much of my time crouched by Brother Quintilian, learning evermore to learn, to make up for my failure to have learned in the first place.
Say what?
In short: I am unswayed.
I have not heard what I consider to be a persuasively-valid argument in support of Dual Agency. Counting Our Lady Ardell in a comment, we have three testaments to personal integrity, and these I do not dispute.
But: So what?
The question is not: Can very trustworthy people effect Dual Agency in a way that occasions no overt objections from their clients? Surely this is possible.
The question is, rather: What policy should obtain in the absence of a presumptive angelitude?
The question is: Taking account that a certain percentage of licensees will be stupid, untrained, avaricious, uninformed or openly larcenous, what policy best protects the interests of the consumer — the alleged justification for our licenses?
Russell Shaw raises a lot of side issues that really don’t have anything to do with the debate. He gets quite a few of these sideways, in my opinion, but we can save those debates for other days. The meat of his argument is here:
My seller WANTS ME TO SELL THEIR HOME TO A BUYER I ALREADY HAVE – this is THE very thing they are hiring us to do.
That is: Dual Agency is valid because sellers want it. We turn to Quintilian, who advises us that, by this reasoning, Sub-Agency is also valid. Sellers want it, and many of them don’t truly understand that they no longer have it in Arizona.
Why don’t they have it? Because as much as sellers might want it, it is morally wrong and legally perilous, that’s why.
And again we turn to Quintilian, who wonders in what way these factors distinguish Sub-Agency from Dual Agency.
The point is this: If there is a valid justification for Dual Agency among non-angels, “sellers want it” is not it.
Jeff Brown also puts himself among the angels, and I doubt this never:
It seems when the smoke cleared, integrity was what mattered. Integrity is the ultimate trump card.
But Jeff may actually eclipse my own jaundiced view of the ever-so-average licensee, so I am not so much interested in his integrity as I am in everyone else’s.
Jeff’s argument about timeliness in effecting IRS Section 1031 tax-deferred exchanges is one that I had considered, because it is a weakness in my own argument. As a counter-point, though, consider a 1031 exchange being handled by an inept agent. Here the involvement of another broker could save the day, where a Dual Agency would be a disaster.
Are there any inept agents out there? Ask Jeff:
Most of the buyers are represented by agents who couldn’t find their backsides with two guides, a map, and a GPS when it comes to income property.
Jeff’s peroration comes back to integrity:
Integrity should always triumph over perception. When perception wins, we all lose. Perception is a bully that doesn’t have anything else to say, so the issue is framed by how it might appear.
But: The negatives of Disclosed Dual Agency are not merely matters of perception. I can teach any buyer how to low-ball a seller right now — except a buyer I represent in a Disclosed Dual Agency. I can teach any seller how to achieve an assured win in accepting a contract, whether or not the deal closes — unless I represent that seller in a Disclosed Dual Agency.
Russell, Jeff and Ardell can produce sellers who have been happy with Dual Agency. Cathy has gotten listings precisely because the sellers hate Dual Agency so much. I don’t consider the testimony of sellers to be a persuasively-valid reason to uphold or reject Dual Agency in any case.
Jeff’s investor argument is not without merit, and marketing my own listings to investors is the way that I have done Dual Agency most often in the past. But: My sellers have always been at least mildly disappointed when a house sold too fast, whether it was privately-marketed or co-brokered through the MLS.
Todd Tarson has an argument I consider virtually insuperable: Where he works, licensees can be very widely separated, so far apart as to make separate representation impractical.
At dinner the other night, Russell made an argument that I think was better than the one he made last night: Not that sellers want Dual Agency, but that they need it. Ardell made a similar argument in comments here recently. Because we market so much harder than the Realtors we compete against, we are very often the procuring cause of the sale of our listings. Right now, we refer this business out. Ardell argues that this invites negative consequences — which we have not seen. Russell offers his sellers a 2% reduction in commission in consideration for consenting to Dual Agency.
All of this is by way of saying that, while my mind is not closed on this point, I am not hearing any universally-persuasively-valid reasons to pry it any further open.
Would I trust Russell, Jeff and Ardell to do a Dual Agency in a way that could incite no objections? You bet. But this is not an argument for Disclosed Dual Agency. If anything, it’s an argument against it. If it only works well when practiced by angels — which was surely also true of Sub-Agency — then it doesn’t work.
Am I wrong? Say why — not with particular examples but with general principles. Brother Quintilian is a tough grader…
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