This form is not an agreement; it is a disclosure. It disclosures the various natures of possible agency relationships, and it is important that you read it to be better prepared to select the type of agency relationship you want.
Agents who represent clients under single agency owe a fiduciary responsibility to the client. They cannot share confidential information with the other party or the other party's agent. Single agency agents must use care and due diligence to perform duties, disclose all material facts and be honest.
Buyer's agents and the buyer generally sign a buyer's broker agreement, which lays out the duties and obligations of the agent. In some states, if buyers do not sign a buyer's broker agreement with the agent, that agent does not represent the buyer but instead becomes a sub-agent of the seller. Sub-agents owe the same duties to the seller as the listing agent.
Seller's agents and the seller sign a listing agreement, which also lays out the duties and obligations of the agent. Listing agents and buyer's agents each owes the client loyalty, confidentiality and accountability.
Many agents work as buyer's agent with buyers and as a seller's agent with sellers. However, some agents work solely as exclusive buyer's agents and never, ever take a listing.
Dual Agency With Two Agents
Because all real estate agents are licensed under a real estate broker, it is possible to work with one agent who is licensed by the same broker as the listing agent. This situation creates a dual agency. The agents could work at separate offices and be strangers to each other, but since they are licensed by the broker, they are still operating under dual agency if one agent represents the buyer and the other represents the seller.
Starting out, an agent may have created an single agency relationship with the buyer, but when the buyer chooses a home listed by that agent's broker, the agent's relationship with the buyer changes. Not all single agents note the distinction. In the real world, most of these dual agents talk the talk of dual agency but continue to walk the walk of single-agency representation.
Dual agency must be agreed to in writing between the parties. Laws vary from state to state. In California, for example, exclusive buyer's broker agreements contain verbiage that allows dual agency, so most buyers don't realize their buyer's broker could be subject to dual agency. Only exclusive buyer's agents are never dual agents.
Dual Agency With Same Agent
A listing agent who also represents the buyer is a dual agent. Dual agents cannot operate in a fiduciary relationship with either party and must treat both sellers and buyers equally. They cannot share confidential information but they cannot give confidential advice.
A dual agent in California was sued by the seller because she told the buyer to ask for a carpet allowance from the seller. It is very difficult to obtain the highest and best price for the seller when the agent also represents the buyer. The dual agent cannot advise on home price nor terms nor negotiate on anyone's behalf.
Some buyers prefer to work solely with listing agents because they know the agent is receiving both ends of the commission, that is the listing commission and the buyer's agent commission. They feel the listing agent is motivated when a buyer makes a purchase offer to get that offer accepted. They might also ask the dual agent to further negotiate the real estate commission to increase the seller's profit on a low-ball offer.
To avoid dual agency, some agents will work as transaction agents. Transaction agents do not represent either party and do not protect the interest of the seller nor the buyer. They simply facilitate the transaction.
A transaction agent helps to fulfill the obligations of the purchase contract and provides the necessary paperwork for each side. It relieves some of the responsibility incurred when agents take on dual agency and further removes the agent from loyalty.
At the time of writing, Elizabeth Weintraub, DRE # 00697006, is a Broker-Associate at Lyon Real Estate in Sacramento, California.