There is a debate on dual agency going on at VARbuzz. This is my contribution to the conversation.
I abhor dual agency — notoriously so. I make no distinction between one licensee or two in the same brokerage, and I am more than prepared to be suspicious if there is any relationship that might seem more important to the practitioners than the fiduciary relationship to the client.
Even so, Russell Shaw convinced me in person that there could be circumstances in which I might have to do a dual agency, like it or not.
What circumstances?
Like this: I’m at open house at my listing, some buyers come in, fall in love with the house and insist they have to put it under contract right away. I would prefer they got their own representation, but my fiduciary duty to my sellers is clear: I owe them the best possible chance at these buyers.
The question is, what duty do I owe to the buyers? The state and federal governments have so gummed up the process of transferring real property that ordinary people cannot competently represent themselves. Moreover, the due diligence process demands expert oversight and advice.
In short, if both parties are unwilling to countenance the idea of separate representation, I’m stuck. I cannot betray the seller’s interests, and I cannot in good conscience permit the buyers to betray their own interests. (And it is plausible to me that I have created an Implied Agency with the buyers in any case.)
This has nothing to do with compensation, and, if we ever have to do this, we will probably split the buyer’s agent’s commission three ways — a point each to the buyer and the seller, in consideration for suffering with limited representation, and a point to us for the extra work. But even that would be at Close of Escrow. My Buyer-Broker Agreement would specify that the buyers could obtain separate representation at any time, even down to the last minute, and I would joyfully pay the buyer’s agent’s commission.
But wait. There’s more. We had a multi-party debate about dual agency at BloodhoundBlog, and, while I would Read more







