Presumed Buyer Agency and Confidentiality

Presumed Buyer Agency and Confidentiality

Presumed Buyer Agency does not exist in all states, but it does exist in Maryland.

In the past, prior to Presumed Buyer Agency, when a Buyer went to an Agent, that Buyer would, frequently, presume that the Agent was representing them, unless the Agent was the listing Agent for a property.  However, in the past, the Agent was actually representing the Seller regardless of whether or not it was the Agent's listing.

Because of this confusion, Presumed Buyer Agency was created.  Now, unless the listing which is being shown is listed by the Agent or the Agent's Broker, then the Agent is presumed to be representing, in an agency relationship, that particular Buyer.

A key word here is Agency.  In an agency relationship, one of the fiduciary responsibilities and expectations is confidentiality.  Even though, it is not a written agency agreement between the Buyer and the Agent, it is still an agency relationship with all of its implied fiduciary responsibilities.

The requirement for confidentiality is ongoing; it exists forever, even after the agency relationship ends or even upon the death of the Buyer.

Presumed Buyer Agency has its limits.  In the State of Maryland, an Agent, when working with an actual contract to purchase or lease, must represent one or the other Buyer or Seller, beyond a presumptive state.  This representation must be disclosed in writing.

Confidentiality example: An Agent works with a Buyer in the capacity of a Presumed Buyer Agent.  During this time the Agent shows the Buyer several houses and learns of the Buyer's financial means and ability to purchase a house.  Eventually the Buyer orally ends this Presumed Buyer Agency relationship.  The Buyer signs a Written Buyer Agency Agreement with another Agent from another Brokerage and puts in an offer to purchase one of the listings from the original (Presumed Buyer) Agent.  The listing Agent can not give the Seller, his client, any financial information from this Buyer, which he learned while acting as his Presumed Buyer Agent, unless this information is otherwise made available.  This is true, eventhough the Presumed Buyer Agency relationship was not in writing and, eventhough, the Agent has a fiduciary responsibility to his client, the Seller.

So be careful.