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Agency....it's as clear as mud!!!

Hi folks. OK, today, I'm going to write about one of my favorite topics.....Agency. This post was inspired by Bill Robert's post "What do we owe our clients". If you haven't read it yet please pop over and do so. Bill understands agency and fiduciary and his post is very comprehensive on the topic.

As way of disclosure, let me say that I am writing this as a Florida Broker who practices Transaction Brokerage(TB). However, TB has only been around in Florida for about 11 years or so. Prior to that I practiced as a single agent to the Seller. Also, at that time we could act as a "dual agent" although I never did.

Now folks I have written numerous posts on Transaction Brokerage so don't really want to rehash that here. Here's a link to my previous articles on transaction brokerage. The one thing I do want to reiterate is that when functioning as a Transaction Broker we NEVER represent the transaction. We are in fact representing the Seller or the Buyer or both albeit in a limited capacity. So let's be clear on that, we do NOT represent the transaction. If you need more clarity click on that little link up there and read those posts.

What I want to write about here is why I feel Agency and Real Estate do not mix well. I'm writing from the perspective of a REALTOR® who is bound by our Code of Ethics(COE).

This is what our COE states:

Article 1
When representing a buyer, seller, landlord, tenant, or other client as an agent, REALTORS^® pledge themselves to protect and promote the interests of their client. This obligation to the client is primary, but it does not relieve REALTORS^® of their obligation to treat all parties honestly. When serving a buyer, seller, landlord, tenant or other party in a non-agency capacity, REALTORS^® remain obligated to treat all parties honestly.

What this means is that whether we are working as an Agent or a non-agent we are to treat people honestly.

Agency creates a fiduciary. "A fiduciary duty is the highest standard of care imposed at either equity or law. A fiduciary is expected to be extremely loyal to the person to whom they owe the duty (the principal): they must not put their personal interests before the duty, and must not profit from their position as a fiduciary, unless the principal consents."(Wikipedia)

So here's my issue. I feel a fiduciary is too high a standard for most REALTORS®. I believe there are too many REALTORS® who by lack of knowledge, ability, financial constraints, or simply, lack of caring are not able or willing to uphold their end of the bargain in a fiduciary relationship. Example: "Did you know fiduciary is forever?"

Another example is Dual Agency. In my opinion, there is NO advantage to the consumer in Dual Agency. The only reason it even exists is so an "agent" or brokerage can two side a transaction. Dual Agency is a joke.

In order for a true Agency/fiduciary relationship to work Dual Agency would need to be abolished completely. Brokerages would have to choose to work only one side of the transaction as an agent. And agents would have to truly understand the level of trust placed on them by having a fiduciary responsibility.

The consumer would have to know, without a doubt, that their agent is working for them with the client's interest being the motivating factor. If agents, themselves, don't understand agency then the consumer doesn't have a chance.

Until this happens, Agency needs to be removed from Real Estate.

This post is only scratching the surface of my thoughts because I really want to hear yours. So someone explain to me, for starters, how an agent who is having financial difficulties and hasn't closed a deal in months can "not put their personal interests before the duty" AND how can an agent, working as a dual agent "be extremely loyal to the person to whom they owe the duty (the principal):

Any thoughts?

Posted by Bryant Tutas Broker/REALTOR(R) Tutas Towne Realty, Inc on 01/23/2008 04:00 PM

Comments (89)

agency, dual agency, transaction broker, opinion

89 Comments on Agency....it's as clear as mud!!!

JAN

2008

Reserved Parking For "The Lovely Wife"...TLW...ROAR!

Blog Boy...

I still have not changed my position on this topic.

I honestly will never understand how "extreme loyalty" can go out to two parties.

I say we throw agency into the creek :)

TLW...ROAR!

Shucks Bryant. The fact that true agency no longer had any meaning was exemplified by the fact that the NAR removed the need to treat all buyers and Sellers "fairly" from the COE.

There's not enough Maalox or money in the world to intice me to practice dual agency again.

Lenn, If agents understood and practiced agency as you do there would be NO issue. But unfortunately that is not the case. The point of this post is if folks aren't going to act as true agents then we need to do away with it. It gives the consumer a false sense of security. And frankly I don't think they care if we are agents or not they just wnt to buy and sell real estate and be treated fairly. And you don't have to be an agent to achieve that.

Bryan,

After our talk this morning I added the following additional comment to Bill Roberts' post:

Bill R,

I write and teach real estate nationally, so Florida's "Transaction Brokerage" keeps coming up. I called Bryan Titus and ask for a copy of his listing agreement, he quickly sent me a FL listing agreement and an O & A.

At this point after skimming both I can tell you this is not a bad agreement. FL's listing agreement out lines the broker's limited duties to the seller, it's very easily understood. The four (4) page sales agreement is mostly about the transaction, as compared to the 16 to 21 page agreements I normal see, from brokers with a fiduciary, that are mostly about disclaiming the duty of the broker with regard to his fiduciary to the seller.

I, personally dislike/distrain the lack of fiduciary, but I found the FL's contracts refreshingly comfortable!

As I say so often: The only protection the consumer has is the personal integrity of his agent! I'd trust Bryan as far as I could throw him... and many, many miles beyond!

We need to continue teaching and preaching fiduciary! But we need to understand that our FL friends have a law to comply with and in doing so they may be much more in-line with us than those who accept their fiduciary, but disclaim it's individual elements.

I will still fight for Fiduciary responsibly, but I find your defined duties while limited, much more honest than those who accept fiduciary and then disclaim responsibility.

"Duel agency is a joke" is wrong it's a despicable sin! The whole idea of "agency" is a disgrace, oddly enough it's perpetrate by REALTORS®, but caused by lenders! The whole problem will end when lenders recognize the cost of a true buyer's broker, contracted and paid by the buyer as part of the purchase price.

Bill

William J Archambault Jr

The real Estate Investment Institute

Bill, It was good speaking with you today as always.

"I will still fight for Fiduciary responsibly, but I find your defined duties while limited, much more honest than those who accept fiduciary and then disclaim responsibility"

And there you have it!!! Let's be honest with the consumer. If we are going to pratice agency then let's do it right. If we can't, and I don't mean some of us, I mean the majority of us, then let's so away with it.

Bryant

Too many Realtors do not explain it to their customers, and as you stated, fail to live up to it. Personally, the Transaction Agreement is a valuable tool, in that I am telling the customer right up front the basics. It avoid future misunderstandings. Love your Titile by the way!

BB, I emailed a few companies out here in the North Fork this morning re. this very issue. Many companies here still offer sub agency, with both representing the seller, but do sellers KNOW that they are liable for issues that arise? Of course not, or they'd never permit a sub agent.

We have a spot for "buyer agency"- this makes much more sense for sellers- no liability on them if there's no intentional misrepresentation- the liability falls to the buyer broker. Many companies do not pay BA, or put "tbd" in the compensation. While I've contacted MLSLI about breaking their own rule (dollar amount or percentage is the only input allowed) it will likely take forever for the agents out here to "get it".

We also have a spot for "broker agency", which means that neither the seller or the buyer carry liability- it falls to the listing agent. Better put, it prevents liability from falling to the buyer or seller.

Dual agency is alive, well, and practiced here. Because the Realtors themselves are trained by the brokers (the larger ones are located in NYC, so know essentially NOTHING about representation), they gamble with each transaction, I believe, without knowledge of the ramifications.

FIDUCIARY is so simple, yet how are Realtors supposed to understand it when the agency representation is not understood? Horrible training is rampant, and it's unfortunate because out of the gate, many agents here are in violation of fiduciary before the first buyer has looked at their house.

Allison, I know you "get it". How many times have you worked with a REALTOR(R) that truly thought they were representing the transaction? Scary. You're so smart. :)

Laurie, It is scary out there isn't it? Limited liability is one of the other advantages of transaction brokerage. Liability is limited for the broker AND the consumer. I don't think consumers truly understand the ramifications of having an agency relationship. Actually I know they don't understand because the agent who is supposed to be explaining doesn't understand either. NY sounds like a very strange place!!!!

Agency is the one thing that was a benefit from real estate school. That and our ethics are our favorite RE subjects, particularly in and around the office where debates with other agents and our managers can be quite spirited and very informative.

We like the idea of our duties owed, and take them very seriously, which we know you do fundamentally. Last year we did none, but years before we did about 2 dual-agent deals a year. All worked w/out a hitch, and all involved were, and still are pleased with the outcome. Truth is we think we walked that line in between them so that each got the best deal possible.

We agree with you here, but we think we understand agency, and the concept of it as what we do we find both comforting and inspiring.

Did you see what the market did in the last hour today? If this keeps up, the media will have to concentrate of hillery and obama fighting, what britney is doing, and heath's tragic autopsy. I we run into a doldrum after that, guess they could dust of Anna Nicole for some more sleazy fun. Oh well...

In the end you have to live with yourself when you go home. I could not move forward without keeping all participants in the transacting informed and fairly treated.

You're right about the clear as mud part. Especially when you can sit in classes at our Boards, being taught by so-called professionals and be misinformed. Or you can call the Legal Hotline 5 times and get 5 different answers to the same question.

BB, what is really unfortunate (and unfair) is that, with the DOJ eyeing NY with more than a little interest, the agents with integrity, but poor training, will likely take any ramifications if/when it happens. When I went to a BA class yesterday, the INSTRUCTOR was encouraging buyer brokers to charge 3% (collusion, anyone?). The instructor disliked my corrections, and the whole thing, while very interesting, was equally "telling". It was good to get a firm grip on broker agency (most listings offer "0", despite it being the best of the choices for buyers and sellers). You'd think that they'd all keep it simple, stupid, and welcome BA, and eliminate the rest (as a general practice). Double ended listings the exception, of course.

edit: BB, they make me horribly uncomfortable, as well. While rare, it STILL doesn't make the case for dual agency- I agree with you 100%.

I COULD GO ON AND ON....ON THIS ONE.....

A few days ago....I had to call the FAR hotline..FYI...they have improved!!!!..I was on the line for 2 minutes and the attorney got on the phone..She explained to the realtor and myself...we have to treat customers honestly and fairly and not at the detriment of the other party. Funny thing we have both sides of the transaction. She stated to me...since you are transaction brokers...our responsibility is to both the buyer and seller and our job is to communicate what the other party is stating. I agree BUT to me its common sense to treat everyone and anyone honestly and fairly...I worked as a single agent in South Florida...in Daytona Beach...I would never! I have many concerns.I never enjoyed handling both the buyer and seller..that's why I had a few buyers agents...as far as implications of agency....I hear and see this..... BE CAREFUL..with terms such as...MY Seller...MY Buyer...giving advice...using client...writing certain addendums.voicing opinions..I could go on and on.

It's just like recieving other company's paperwork...you would think they would stay current...we get disclosures that are either out of date..or not necessary...if you tell them we are the bad guys...it's a good chance these doc's were revised for a reason...in many instances...it can save your transaction....Great post...

we must be on the same wave length...I have one in draft...implications of single agency...

Laurie, It doesn't surprise me at all that an instructor was 'coaching" at what to charge. I bet the DOJ would have loved to sit in on that class. You certainly have a lot of issues to overcome in your market. I truly feel there is an opportunity for you there to do it right. You could be the breath of fresh air the consumer needs in NY. Double ended listing do not have to be done by being a dual agent. Folks could very well represent one party or the other and let the other party be unrepresented if they are willing. Personally I prefer to just not double end anything. It happens but very rarely.

Lisa, Our legal hotline is very scary. Some of the attorneys there are very smart and some are just flat our clueless. I've actually argued with them on several occasions. Folks really struggle with the fact that we do NOT represent the transaction.

Team DiMuria, "keeping all participants in the transacting informed and fairly treated." Is fine if you are a transaction broker for both parties. But when agency is involved this becomes a problem. A true single agent/fiduciary is looking out for their principal's best interest not trying to be fair to all parties. That's where my problem with agency comes in.

Richard, "Truth is we think we walked that line in between them so that each got the best deal possible." Another reason why I feel dual agency is wrong. Trying to please both parties is NOT an agency position.

BB,
if the realtor is not acting as the buyer or seller advocate, why even have a realtor. If you cannot trust the person you hire to act in good faith and in your best interest, why even pay them. And, if a realtor does both ends of the same deal, how can he be anybodies advocate but his own.
aj

Midori, The attorney is right only if both REALTORS(R) are from the same office. If they are not then the Attorney is wrong. Example: If I take a listing as a TB and a REALTOR(R) from another office is representing the buyer as a TB then I have NO representation at all with their buyer. I am working for my seller to try and negotiate the best deal possible. "Not to the detriment of the other party" only applies if it is the same REALTOR(R) or two from the same office AND if they are working as TBs instead of a non-rep. If a non-represented buyer looks at one of my listings with me and wants to make an offer I do NOT have to be a TB for this buyer. I can do the deal as a TB for my seller and a non-rep for the buyer. Of course we are presumed to be TBs so I would have to provide the buyer with a non-rep disclosure. Is this the way you understand it to be?

AJ, here are the duties of a Transaction Broker: As you can see there is much value whether I am an agent or not. For me this is a very true picture of what we as REALTORS(R) do.

TRANSACTION BROKER NOTICE

As a transaction broker, (insert name of Real Estate Firm and its Associates) , provides to you a limited form of representation that includes the following duties:

1. Dealing honestly and fairly;

2. Accounting for all funds;

3. Using skill, care, and diligence in the transaction;

4. Disclosing all known facts that materially affect the value of residential real property and are not readily observable to the buyer;

5. Presenting all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise in writing;

6. Limited confidentiality, unless waived in writing by a party. This limited confidentiality will prevent disclosure that the seller will accept a price less than the asking or listed price, that the buyer will pay a price greater than the price submitted in a written offer, of the motivation of any party for selling or buying property, that a seller or buyer will agree to financing terms other than those offered, or of any other information requested by a party to remain confidential; and

7. Any additional duties that are entered into by this or by separate written agreement.

Limited representation means that a buyer or seller is not responsible for the acts of the licensee. Additionally, parties are giving up their rights to the undivided loyalty of the licensee. This aspect of limited representation allows a licensee to facilitate a real estate transaction by assisting both the buyer and the seller, but a licensee will not work to represent one party to the detriment of the other party when acting as a transaction broker to both parties

Great topic.. Your excellent point of - how an agent who is having financial difficulties and hasn't closed a deal in months can not put their personal interests before the duty - is something I see often in this market. Funny (or scary) thing is, I saw the same crap when the market was "booming" in agents that just wanted quick sales.. Representation is serious business. It is the back bone of a successful career. Short sighted, greedy, hungry, late on your car payment or even uneducated is no excuse for mis-representation..

Sorry Bryant-we do in fact have the buyer and seller working in the capacity of transaction broker. To me that was small talk as compared for the reason why I called. It was good to hear the words not so much for me......the associate. Always a good reminder.

I have never liked handling both ends of the deal.

The hotline has improved...I call them just to double check myself...it helps me to retain the info...also...Lisa Hill...I am on the education committee at our board...I think if you take some of the newer classes..you will find they are better quality...if you do take some...let me know...would love to hear your thoughts....especially coming from you! :)

HHHMMM, Nice picture of you in the mud. Evidently TLW tossed your but into the mud hole for reasons which can't be expressed on AR .... Again.

Sean Allen

Sean...

That cracked me up. I am pleased I am not the only one who does that :)

What I am referring to is the off topic remark. I am the Queen of the off topic remark :)

TLW...ROAR!

BB,

Thats wy we give the potential client the transaction notice when we meet them.

I don't see much of anything else but transaction brokerage in my area....I did come a cross a seller who wanted a single agent once but that was a few years ago.

Bryant as you know we do have dual agency in MI. In fact, I am negotiating an offer right now for both parties, Then the buyers on my listing, want me to list their home. Why? They think I will be more motivated to sell their home so they will be able to purchase the home I have listed. I have dealt honestly with both parties. I also had them sign a dual agency agreement BEFORE we discussed anything.

I did not or could not tell them what to offer, I can't do that.

I have presented both offers and countered and they both understand completely what my responsibility is to both of them.

Here is what is in our Disclosure of Agency Relationship States in MI.

A real-estate licensee can be the agent of both the seller and the buyer in a transaction, but only with the knowledge and informed consent, in writing, of both the seller and the buyer.

In such a dual agency situation, the licensee will not be able to disclose all the information to either the seller and the buyer. As a dual agent, the licensee will not be able to provide full range of fiduciary duties to the seller or the buyer.

The obligations of a dual agent are subject to any specific provisions set forth in any agreement between the dual agent, the seller, and the buyer.

Agency and the fiduciary duties that it entails is alive and well in some jurisdictions.

Agency law is well established and understood in many countries around the world.

Fiduciary duties are : Obedience, Loyalty, Disclosure, Confidentiality, Accounting and Reasonable Care.

There is no agency in transactional brokerage. (What a concept, "acting" like you're representing someone, a trans"actor".)

Honesty (not deceiving or lying) is owed to all whether they are clients or customers.

Go ahead, google "fiduciary duties", and learn.

Dual agency is divided loyalty and a conflict of interest.

BB, I must admit that I was going to comment differently. We know that the difference between SA & TB is a fiduciary responsibility. But you bring up valid points when you say that you believe there are too many REALTORS® who ... are not able or willing to uphold their end of the bargain in a fiduciary relationship. But your last paragraph really threw me. I never thought of this, basically because thank goodness I'm not in that situation. But it has to make you think.

Bryant, I am convinced that confusion over the whole agency thing, especially as it was practiced before the days of buyer brokerage, is what gives us a bad rap with the public. I almost never write on my own listings. When I do, they have to sign Pat's form that says something like:

"I represent the seller in this transaction. My job is to get my client, the seller, the highest possible price and the best terms. Anything you say to me I can and will share with the seller. You may use a buyer broker of your choice to represent you. If you don't know one, I will be happy to give you a list of names of very good agents."

And in DC and Virginia, they got rid of the whole fiduciary thing.

Ever since I opened my brokerage, I made it company policy that all agents would act as a transaction broker. No single agency or sub-agency allowed, period. I don't want the responsibility of being a fiduciary, and if my customers fully understood what a fiduciary was, they probably would not want it either. The transaction broker law relieves liability for both the Realtor and the consumer.

Consumers already struggle to understand what a transaction broker is. I wonder how confused they will be after 7/1/08 when the disclosure form is no longer required by law.

This is always a challenging topic and one that is not going to be solved quickly.

BB - Here's my take on it! If you are hired by a seller to SELL THEIR HOME, most just want it sold with as little or no complications they can get, yielding the highest dollar possible the market with allow. The Main reason they hired you is to FIND A BUYER so they can sell... not put it in the MLS and stick a sign in the front yard! so tell me... should you not actively seek out a buyer for that home, or should you just not be compensated for that part of the transaction?

If I am representing a seller and find a buyer, I always represent my clients with integrity and honesty with limited information to the other party especially during negotiations. If everyone is happy with the services they received and no-one feels like they got ripped off, what's the problem?

The whole reason and way realtors came about, was a way to get buyers and sellers connected, while having a professional handle all of the paperwork. IMHO I think that attorney's probably got involved and complicated things because of some 'bad apples' out there screwing it up for the rest of the honest folks, with plenty of integrity giving their clients the same advise they would give their own family!

In every transaction, I always ask myself, Is this the same advise I would give myself? my mother? my grandparents, my children? If it is, I am doing the right thing!

As REALTORS, we are here to make things easier for our clients we represent, the sellers, the buyers or both.

Thanks for the great info. i like reading info like you have posted.

You surely wouldn't have the same divorce attorney. My state has designated seller and buyers agency which is really good considering my office has over 200 agents. I don't know a lot of the agents let alone their listings. Transaction broker is one of the most misused relationships in the business. It is not meant to be used for buyers you meet off of a sign call. It is only supposed to be used when you are genuenlly working with a buyer who wants to buy one of your listings. Most of us are too afraid to tell a sign call buyer that I can only work with you as a customer. We want both sides and think that TB is the right decision but that dumps your seller to the side of the road so you can make more money. How does that help them and how does that help the buyer? The smart choice is to refer that buyer and represent the person you promised your loyalty too in the first place.

Next week I am closing on one of my listings and I also have the buyer side.

Before making an offer, the buyers of course asked me how much the sellers would accept. I told them I didn't know and I actually didn't. I pulled up comps of recent sales to enable them to come up with a fair offer according to current market situation. That's the offer I presented to my sellers. At that point I also knew that my buyers would have paid full price but according to market stats their offer came in lower. My sellers never knew they could have gotten full asking price. I showed them the same stats: "This is what has sold recently. You have an offer for x amount below your asking price. How do you wish to proceed?"
It never occured to me to tell the buyers to make a full price offer, even though they would have and actually did suggest it in the beginning.
My job was to get the seller the highest sale price possible and the buyer the lowest price possible. This isn't determined by the dollar amount I want on my commission check, it is determined by the market and only the market.

I never say "I think it is a good offer", I never say "I think this is a fair asking price". I don't decide for the buyer OR the seller. What I do is give them information so they can decide for themselves. At no point did I ever offer my opinion, I offered hard data instead.

Maybe I am clueless - but when I read the last comment by Andrea - I cant stop to think how messed up that is!

By showing comps that don't support the Sellers Full price is NOT representing the seller (the way I see things). It IS representing the Buyer - but what about the other client - the seller? If you knew the buyer would pay full price - then you weren't getting the seller the best price - but if the buyer paid full price than the buyer isn't being properly represented.

Either way someone isn't getting the BEST deal. It may be a Fair deal - but Fair is not only subjective - but its the BEST deal our clients want - exepect - are paying for - and SHOULD be getting!

If this isn't a case for getting rid of Dual Agency - I dont know what is.

For all the reasons mentioned in the comments, and all the obvious limitations that our everyday experiences demonstrate... dual agency is for gamblers. I don't/won't do it. I am an advocate first and foremost. I represent the transaction SIDE of one party. I'm good at it and I enjoy it. I am NOT just a facilitator. I kick someone's ass on behalf of another, and I'm proud of it! Meow.

Dual agency is fraudulent, IMO. It's dishonest to both parties, and subjects them both to an agent that, for any number of reasons, will be tempted to settle the thing without fiduciary. While some might be able to handle this, an equal number won't. If you're interested in the outcome of the transaction from a fiduciary standpoint, dual agency is the antithesis of fiduciary, and should be ancient history. What an agent considers "fair" is not appropriate- at some point in the negotiations, the agent will interject to the benefit of one, and the detriment of the other. Don't represent to consumers the impossible. Andrea offered fiduciary to her buyer, at the expense of her seller. She should have left the buyer on their own, and honored fiduciary to the seller, period.

I've never understood how Dual Agency could exist. I remember when I got my license, I asked about it, and then after the instructor explained loyalty, I asked how one person could be loyal to two people with competing interests. After several years he hasn't answered that...

"...I feel a fiduciary is too high a standard for most REALTORS®..."

That sentence says it all and then some. Fiduciary obligations to our clients are always talked about in the context of what our obligations are, but as an "agent of" in a fiduciary relationship, the client is bound by OUR actions as well. If that was fully explained to them, most would have a serious issue with giving their REALTOR®, who they may or may not know very well, the power to bind them without their consent.

I don't do both sides (at one time) and have referred the buyer out. I have represented the seller...and just so happened it fell out of contract and another agent from my office put an offer in...which created a dual agency. It worked out fine. Of course we don't have all those additionals as you do either. We have Buyer Rep, Seller Rep, Dual Agency Rep and No agency rep on our Agency Disclosure (and a separate Dual Agency Addendum as well)

I refer the buyer out if I end up in a dual situation. I cannot believe what is going on right now with the short sale and REO market in regards to dual agencies. I think they are unfair and short sale agents are placing it in contract status before even receiving bank approval. REO agents can fail to get the bank other offers to push their own through.

I say abolish dual agency also!

Has it really been 11 years since Dual Agency was outlawed in Florida? Way to make a girl feel OLD!!! There can be conflicts of interest in any or none of these. Agents can be single agents for two buyer clients who want the same house and have more conflict than in Dual Agency. Anytime an agent feels a conflict, they need to resolve that problem by referring or bowing out, even if that conflict is putting themselves before their client. Conflicted loyalty is the issue, not and "brand" of agency.

Having this discussion on a national level can be very confusing due to the differences in agency law from state to state. In Georgia, transaction agency has a totally different definition than Florida.

Georgia tried to do away with dual agency several years ago but due to a mass uprising of "mature agents" who didn't even understand buyers agency yet, we now have what I refer to as "having your cake and eating it also" agency legally referred to as "designated agency" which allows two agents in the same brokerage to represent both parties to a transaction, with the broker acting as a "firewall" and this is not called dual agency! Isn't that just ridiculous! In case you are interested, here are the full definitions of agency in Georgia.

Update: Amen, ARDELL! you were typing at the same time I was and you are 100% correct!

JAN

2008

I have only had one transaction where I represented both the buyer and seller. It was my worst transaction and I hope to never be there again.

BB - Keep preaching it! Agency is so misunderstood and could stand a good dose of clarification.

I am in the same state as Laurie, New York and agree 100% with her and with you about Dual Agency. Don't believe it's possible and is at best a slippery sloop. In NY Dual Agency is permitted but I always bow out. We do not have transactional agency here. Effective this year we have Designated Agency and the Deparment of State has clarified that a Designated Agent can advocate for a buyer but can not provide undivided loyalty. Now what agents do to get "both sides" is represent their seller and let the buyer go unrepresented. So that on paper anyway it is clear. Really bad news. Double dipping is alive and well. What is interesting here however are the buyers coming from states where things are explained they understand about this and ask. Agents have to do better because of this.

Bryant,

Great post...I agree with your conclusions 100%...further, your comment, "I feel a fiduciary is too high a standard for most REALTORS®.", is so right on that if others in your profession don't espouse it, it will be the road that leads to a huge amount of legal suits and probably of the 'class action' variety. This is the only way to plug the hole in the dike!!! Thanks, Fran

Good morning all, Really great comments from everyone.

Andrea, I have read and reread your comment and I'm having a very hard time getting my head around it. I'm assuming you took this listing as a TB, then when you found the buyer you were also working with them as a TB. Because of this you were not able to "coach" the buyer or the seller on pricing. Is that right? If that is the case, isn't coaching them exactly what you did when you did not write up the full price offer that the buyer was wanting to submit? Your comment is a perfect example of how trying to double side the transaction harms the consumer. The seller ended up taking less for their property because the person they hired to work for them(even if it was as a TB) compromised their position. You could have very well worked the buyer as a non-rep and been in a better position to counsel your seller properly. I'm going to have to ponder your comment today. I do apprecite you sharing.

OK I have a busy day but will be back later. Thanks

BB, I agree with you about dual agency...I have never represented both sides but I also have never practiced real estate in a state that has transactions. However, I do believe in agency/fiduciary level of responsibility to a client. The fact that as you wrote "I feel a fiduciary is too high a standard for most REALTORS®. I believe there are too many REALTORS® who by lack of knowledge, ability, financial constraints, or simply, lack of caring are not able or willing to uphold their end of the bargain in a fiduciary relationship." is true tells me that we need to raise the bar and make them uphold their end of the bargain, not lower the bar because some agents don't perform their jobs to the highest standard.

Great information and a great post. I think this is something we can all learn from and use everyday in our business.

Bryant, copy Sally's comment here. We do have dual agency in California. I made a decision to not do them any longer. I use to and always felt uncomfortable. I would always explain (use dual agency disclosure) that it puts both parties at a disadvantage. Thanks to many posts on the subject from you, I have made a good decision to no longer do them, but to refer them out. I think my broker would have a problem with me referring out to another agent in a different franchise office. If I refer to another agent in my office, it is still dual agency. In your opinion, are all the same ramifications issues present? It would in effect just raise the issues to the company as the responsible entity? Uhg! This makes it harder for us in California. What advice?

Everything you have said in this post points to the exact argument AGAINST "part-time" agents in this business.

They are NOT committed enough to stay on top of every issue that may affect them or their client's best interests. By "part-time" I do not judge that by hours put in as much as the "heart" put into the proper practice of this business. It is a SERIOUS, ethics driven, high level of responsibility type business and only career minded and dedicated folks should be allowed to practice it.

Now that the commission driven agents are finding it hard to stay in their part-time positions in real estate, this is the time that the career minded should insist to NAR and our state legislatures to increase the standards by which we allow new folks to enter the business.

Most of what you have put in your post goes over the heads of the non-committed. They didn't get into the business to understand these issues. Most part-timers got in with their hands extended. Some will make us proud. Most will not.

Hi, Bryan:

I agreed dual agency is a joke. I did it one time, with existing clients on both sides of the transaction, and I was a nervous wreck. I risked my relationships with both clients because they inevitably started to wonder if I was really representing their best interests or just trying to make the deal work. I ended up making about $2.00 an hour, too, what with all the concessions and time I put in! So now I make it clear to all prospective clients that I "don't do dual."

Thanks for the thought-provoking post!

Cheers,

Robin

Hi again, Another quickie before I run out.

DUAL AGENCY is NOT the only way to double side a transaction. Whenever I write about dual agency being a joke I get comments about how we should be able to two side a transaction. To me, that comment just reiterates again how confusing agency and especially dual agency is. If you want to two side a transaction then by all means have at it. Why not do it by just representing one side of the transaction and let the other side of unrepresented? In States where dual agency is legal, is this a position that you have to place yourself in? Or can you just work with the buyer as a non-rep(no agency) and still do the deal while watching out for your client, the seller? Is this an option in all States?

I realize these conversations can be difficult since States have different laws pertaining to agency. BUT agency principles are the same. So we are certainly able to voice our opinions on that.

I also want to mention that in an ideal world I am all for an agency relationship. I understand agency completely and have not problem working as an agent. BUT it's not about us. It's about the consumer and right now there are too many folks that do not understand agency. In my opinion this fact is putting the consumer at risk. They think they have something that may or may not be there. That's the problem and the purpose of this post.

Hi BB,

Excellent food for thought and conversation amongst all. In NJ we have the advantage of using Attorneys. Now I know some may frown upon that but it truly does help take the pressure off.

Bryant, I agree with you about 'fiduciary duty' being a rather high standard that very few people can meet when representing their clients. I see it as more of a guidepost though and I imagine that if the expected duty were some lesser term, the overall standards would drop even further.

We don't have transaction brokerage here.....only agency and dual agency is still practiced. I won't personally do a dual agency. If a buyer comes along for one of my listings, I offer them 'customer service' complete with a fully written out contract so there is no misunderstanding of the level of care and duty involved and to who.

There are numerous situations though where an agent from my office or one of my broker's other offices brings an offer on one of my listings, or vice versa, and it is automatically considered dual agency and is spelled out as such. This is because it all falls under the same principal broker. In those situations we have 'dual agency- secrets kept', meaning I don't disclose my clients position to the other sales rep, and vice versa. Kind of strange, but for now that's how we do it.

Very hot topic. Where Dual Agency is permitted you can bet agents will do it for financial reasons, sale credit reasons to reach their special sales award status, or perhaps they just see a 1st time buyer who desperately needs representation, etc. Dual Agency...Handle with Care!

I have never worked bith sides of the transaction. I can see where that would place an individual in a difficult position of serving two masters.

BB, I appreciate your mention of my post but your influence seems to be waning. None of your commenters have found their way there yet.

In any event I've been busy trying to clear the water after you stirred up the mud. I also really appreciate that. Controversy has a way of bringing out the best from all of us.

Now as you know the issue of AGENCY isn't about how you treat a client (or customer in your case) but rather about liability. Your liability is reduced to almost zero by being a TRANSACTION BROKER while mine is sky high being an AGENT. It doesn't matter a damn bit what the agent does or doesn't know about agency, that liability PROTECTS HIS CLIENT.

Now just a few words about DUAL AGENCY. In California an unrepresented buyer (or seller for that matter in the case of a FSBO where the buyer is represented) is presumed to have representation has a matter of public policy. We can't get away from dual agency here even if we wanted to. But since agency is really just about liability dual agency isn't a problem if you treat everybody fairly, honestly, lawfully, and with full disclosure. Granted, you can't have full loyalty to both parties but the courts have held that representation for both parties is more important.

I hope I stirred up the mud a little bit for you.

Bill Roberts

Dual agency is a strange practice, it is like having one coach for two opposing teams, or one lawyer represent two opposing companies.

I sincerely doubt that most buyers and sellers would understand that the real estate agent still represents and works for the seller and the best interests of the seller in dual agency.

Bill, You actually bring up a good point about liability. Liability is however a two edged sword. Not only does agency create more liability for the agent it also creates more liability for the principal. That consumer liability is a major part of my argument. Also, our Florida license laws have just as much protection for the consumer regardless of whether we are an agent or not. Their protection may not fall under agency laws but it certainly falls under licensing and real estate laws. I completely disagree that the biggest defense for agency is broker liability. I'm just as liable for my actions working as a TB. Agency laws are not about us they are about the consumer.

I do want to state again that I am not against agency. What I'm against is the consumer relying on an agency relationship and all it entails when in reality few agents are living up to the standard. That's where the problem lies.

If all agents understood agency as you, Lenn Harley and others do then this would be a non-issue.

BTW I tried to send them over:)

I always try to check my actions against the question "what is best for my client". If it stands up to that test, I usually know I am doing the right thing.

I didn't read all the responses, but I will say that if I have a listing and I find the buyer, I should get paid for doing twice the work.

In my mind dual agency just allows the agent to work twice as hard.

I will never understand why buyers think that they will get a better deal from the listing agent. It seems to me that they almost always pay more.

BB, I know you did. Just no accounting for what people will or will not do.

I agree that uneducated and uncaring or oblivious licensees are a major problem in our industry. That is why I advocate higher standards all around: real estate agents and loan officers.

Bill Roberts

I can't get past thinking about the Mud Man. Is that you under all that mud. I once went to a ritual mudding they looked pretty much like this. Was I supposed to be thinking about agency? I've been a dual agent a couple of times....makes me crazy.

Dual agency frightens me. When I am in a position where I have both buyer and seller I refer the buyer to another in my office. I just DO NOT want to be in that position and for the life of me I can not see how it can be done.

Hi Bryant...Thanks for the explanation on your transaction broker agreement. We still have no agency or Limited Dual Agency here. The issue here is once a person calls us here on a listing you have started an agency relationship...so some especially new project Realtors tell a prospect right away they do not offer them any advice and there is no agency relationship, and recommend they seek a Buyers Agent or to seek independent advise...They of course earn both sides of the commission, but without any agency relationship.

We're probably heading your direction soon....sounds like maybe the Transaction Broker Agreement is a good way to go....Thanks

Sean, the problem is when you try and represent two "clients" with opposing interests...

Bryant- We are transaction brokers. When I called FAR to clarify the relationship of the transaction broker they said it is limited agency but no fiduciary duty. Fiduciary is in single agency not transaction broker agency.

Of course we think of the consumer but we were told by our instructors on this subject 11 years ago when transaction broker was implemented that the reason it was implemented was to help the consumer better understand their representation, to limit the brokers liability by getting rid of dual agency and to get rid of any presumption that everyone is working just for the seller. Brokers embraced this concept because liability although always there, was not the extreme it was with dual agency.

It is always interesting to see all the different laws in different states come out in these agency posts. Katerina

JAN

2008

Bryant, Ugh...it's giving me a headache. I do understand better, however. I do not believe we have an option to do transaction broker agency and after reading Bill's comment....I can assume this is so. This argument (clinical term) would all be new things in my office and I am already considered to be a renegade. Oh Well.....I am what I am (NOT it is what it is)! Thanks for these great posts, they really get us working on how we are doing business and understanding better these technicalities. Some little thought is lingering in the back of my head....maybe the headache.

I thought I understood agency and dual agency. Whether I am using either, I always look for the transaction to be administered by the terms of the contract (which makes the effort to define seller and buyer responsibilities) and by the COEs and then the terms and definitions of the Agency. I pursue my responsibilities to buyer or seller to the fullest degree possible. I however, never try to harm any party in the transaction. It is my understanding that at the basis of all we do, our highest responsibility is to transact a safe transaction for all parties. I do this whether I am under dual agency or not. The highest result we can achieve is a fair and equitable transaction according to the contract, the COEs and the agency.

It seems that as a TB you limit liability, however I know you still provide this same high level of protection and care for your client. So is it merely a matter of liability?

Learning here!

Hi folks. Thanks for stopping by. I have a couple of comments.

Anon wrote: "I will say that if I have a listing and I find the buyer, I should get paid for doing twice the work." Again it's someone confusing "dual agency" with double siding a transaction. You do NOT have to represent both sides of the transaction in an agency capacity in order to do both sides of the transaction. Correct me if I'm wrong but are there any States where ALL parties have to represented by an agent?

Bill, I too advocate higher standards. If we had them this discussion would be moot.

Katerina, Good to see you as always. Did the FAR Hotline really say TB is limited AGENCY? If they did they are wrong. TB is a NON-agency relationship. I know it's nit picking but there is NO agency in a TB relationship. Fla Statutes: Transaction brokers provide a limited form of nonfiduciary representation to a buyer, a seller, or both in a real estate transaction. Limited liability is for the broker AND the consumer. So that's a good thing.

Jeanean, The biggest difference is the absence of fiduciary. Because of the absence we have limited liability(so does the consumer) and we have limited confidentiality. The consumer is not bound by my actions and I am not bound by theirs. But of course we are still to conduct ourselves in a fair and honest manner.

Thanks everyone for stopping by and participating in this discussion. It helps us all to learn.

Bryant, again a clear and concise post... and unfortunately, I must agree with you...

I say unfortuantely because one of the states we practice in, Rhode Island, has passed new legislation, which claims to abolish Dual Agency, but in typical RI fashion, really has simply changed the name, eliminating the word "Agency" but otherwise leaving the institution intact, and introducing a new classification: Transaction Facilitator... so now, according to the law in RI, there are:

1) Transaction Facilitators: "A licensee who provides assistance to a buyer, seller, landlord or tenant, or both, in a real estate transaction as a neutral facilitator who does not represent either party.

2) Designated Client Representatives: "A licensee who represents a buyer, seller, landlord or tenant in a real estate transaction and advocates on the client's behalf."

3) Dual Facilitators: "a licensee who assists a buyer AND seller, or landlord AND tenant in the same transaction and must be neutral as to any conflicting interests between the parties to the transaction"

and

4) Transaction Coordinators: "a principal broker or his or her designee who supervises a real estate transaction in a neutral capacity."

--> Dual Facilitator????

Wait, did I miss something?

Well, as with all things Rhode Island, this is what the "community" wanted, so they got it...

We shall see how this goes... If I could, I would argue to get rid of this NEW category...

Great post, once again...

I agree with you. The term isn't completely understood and everything that it entails. I agree about dual agency.I don't think I would want to get stuck there.

Paul, Now that's funny!! Just like Florida, RI has, in my opinion, done a very good thing by eliminating dual agency but has managed to make things even more confusing. We are all so hung up on this double siding the deal stuff that we keep finding ways to continue doing so. Why not just make us all pick a side? Wouldn't that be so simple and so clear for us and the consumer? But of course it can never happen because everything washes down through the broker. All of these are reasons I say just do away with agency completely. Lets call a duck a duck. We are licensed salespeople trying to help you buy and sell property!

I have to agree Bryant... it would clear up a bunch of confusions on the part of licensees and on the part of consumers... but agents want to be considered as Professionals, in the class of doctors, lawyers, accountants, etc., and because of this, need to obfuscate the obvious... we are salespeople... in my book, a duck is, in point of fact, a duck, and so we should all agree to cease and desist...

And just go on and sell houses...

Bryant,

You've stirred up a lot more than mud with this post...and that's a good thing! I say we throw out the baby, the washwater, the diaper, the bottle, and the binkie...and go back to 'caveat emptor' and start over!!! LOL Thanks, Fran

BB, You run a small shop so you can deal with double pops a lot easier than say a large C21 or Prudential office. That broker might have hundreds of sales people under him. One has a listing, another wants to sell it. That would be dual agency. What do you want to tell them? No way you can handle that ttransaction.

What if thast broker has multiple offices and the sales people don't even know each other? It's still dual agency. Other than give up agency all together like FLA did, what do you want them to do?

Big offices aren't going away. If anything there will be more and bigger offices.

Bill Roberts

JAN

2008

James, it's not messed up at all: when working with the buyers, they saw all the comps and based on that, they made an offer. When working with the buyers, I wear my "Buyer's Hat", when working with the sellers I wear my "Seller's Hat". It's a simple guideline and it works to everyone's satisfaction as long as the agent puts both parties best interest BEFORE the commission check.

Bryant,

I didn't coach the buyer when making the offer. The buyer's wife indicated she wanted the home so much she would go full asking price. I showed them the comps. There were identical models that had sold for $5,000 less (we're talking mobile on rented land). My buyer then decided to go $3,000 under asking price. At that point in time I wore the "Buyers Hat" and I had only my buyer's best interest in mind. I could have pushed full asking price (for my seller and for my commission check) but that wouldn't have been dealing honestly and fairly with both parties, right?)
Now, had I not been the listing agent as well, I wouldn't have pushed for a full price offer either, based on the comps.

Then I presented the offer to my sellers. They were disappointed about not getting a full price offer. They also knew from my comps that they were $5,000 over the other identical model that had sold.

My job was to get the lowest price for my buyer when wearing my Buyer's Hat.
My job was also to get the highest price for my seller when wearing my Seller's Hat. I explained to them what their options were: accept, counter or reject. We went through each scenario. The final decision was theirs.
At no point in time did I inject my opinion.. Both parties based their decisions on making the offer and/or accepting or rejecting it based on comparables ONLY.
No coaching at any point in time.

I think I need to clarify that "full price offer" the buyer wanted to make: They walked through the home, then later outside the wife said "Honey, I want this one. The price sounds good, let's make the offer. Mrs. Agent, is it a good price?"
Back up the truck, let's have a coffee at my office and look at some comps.

I read lots of the comments and they are very good. We can have dual agency in California and in the two instances I have handled both sides of such a transaction, I honestly felt I was representing both sides well and respecting the fiduciary relationship. Both those circumstances were out of the ordinary however, and only because of the extenuating circumstances, did I feel it would work out well.

We have fourteen agents in our office and do more volume than any other agency in our county. We do have many instances where our office has both sides of the transaction, but with different agents. I do not see a conflict of interest in those instances, but how can a buyer or seller not feel there would be a conflict if the SAME agent represented both buyer and seller? I would if it were me.

JAN

2008

I want to clarify something, that it seems some agents feel is a truism, but which technically, is false... agents within a single firm or office do not actually represent a client... the act as the representative of the broker, who is in fact representing, de facto, all the clients his firm or office signs up... this means that within one office, if a sales agent is representing a buyer, and another within that office is representing the seller, in one transaction, TECHNICALLY speaking, both are being represented by the BROKER, not by the individual agents...

What this means is that in FACT the two parties, or principals, are being represented by the same "person" -- namely the broker.

I think this is something that gets confused much of the time, as can be seen by certain of the comments here.

Just my two cents...

Hi Paul, Good to see ya! yep there are many folks that may not understand this. Everything is through the broker. In reality agents are "subagents" to the broker. This again proves my point, if we don't understand agency how in the world do we expect the consumer to? Bottom line is the consumer doesn't care. They just want to buy or sell real estate.

I agree Bryant... but agency classes even in law schools are tough... agency is complicated in many ways, and not neccessarily intuitive... but alas, we agents do not all get it...

So in my mind, either we represent the buyer, the seller, or act as a transaction facilitator and represent no one... those are the only valid options as I see it, assuming agency will remain... if done away with altogether, better yet...

JUL

2008

Not sure whether I agree or not, but I want to say that if we do away with fiduciary roles, then we might also want to stop comparing ourselves to lawyers, doctors, accountants, and other who DO have fiduciary (lawyers and accounts) or other client relationships that are non-financial in nature, but equally demanding (doctors, for example)

By reducing the role of Realtor to a transaction facilitator, it also puts Realtors more in line with other professional sales positions, rather than the often touted comparisons about doctors lawyers accountants and financial advisers that we see often amde on this site and others, especially when it comes to discussing pay...

Give up one, and give up the other as well, I think... not that this is so overwhelmingly meaningful... but still... it changes the nature of the profession at a fundamental level.

On the other hand, if all the agents acted as fiduciaries, and only "represented" one party to the transaction, all would be resolved... so I would say we should get rid of dual agency, and we should have clear disclosures that we represent the seller if we have the listing, and we represent the buyer if we do not... simple?

Enforcement is another matter entirely... how do we ensure that agents are doing this? Brokers? What say you Broker Bryant...?

Paul Silver

To be a bit more to the point... agency is not practiced in real estate at present, by most agents, regardless of what is specified in the CoE... everyone is a customer, to most real estate agents... what ever we actually call them... so you are right, we should cease to claim that we practice agency, when in point of fact we do not, and are open for liability in cases where we did not disclose conflicts of interest, or where such conflicts caused harm to one or another of the principals.

Then we are up the creek without the paddle...

But I dont see that removing agency helps the industry, or agents generally... we should be able to understand what agency means, and then function as other professionals (lawyers, doctors, accountants, financial advisers, etc.)

Sorry for the multiple posts, but as I like talking to myself, as you know, I thought your blog might as well be the place. ;-)

Paul Silver

Paul, I hope I'm not interrupting :)

There are many of us that can work as agents and lookout for our clients best interest in doing so. BUT I feel there are many more who can't. And that's where the problem arises. The consumer is harmed when they think they have an "agent" working for them when the reality is they don't.

Now having said, that I think most consumers just want to buy or sell real estate and have no idea what agency means and could care less how we work. They just want to be treated fairly which is something we should do whether we have an agency relationship or not.

In a ideal world we would all just pick a side and work it while looking out for our clients. Dual agency should be outlawed in ALL States. In my opinion, it is foolishness. It surprises me when a conversation is started about dual agency, amongst licensees, it always gets back to be able to "double side" the transaction. There is no reason in the world why we should need to be a dual agent to "double side" the transaction. The only reason it even exist is so agents in the same office can do a deal together. The fact that agency relationships pass down from the Broker is what causes this problem.

This is why I like transaction brokerage. By the way, we are only facilitators if both buyer and seller are being handled by the same office. Even then it does not have to be that way. We can represent one party as a transaction broker and work with the other party as a non-representative.

If the buyer and the seller have representation, from different brokers, then we are still not facilitators. I represent the seller and the buyer has their own representation it's just not agency representation. Of course if you ask most REALTORS(R) in Florida who they represent they'll say they represent the transaction. They're wrong. And of they don't get it then the consumer doesn't have a chance.

As of July 1st we no longer have to give ANY disclosures to the consumer(in Florida). We are presumed to be TBs and no disclosure is required at all!! Now that's scary. But I stil lbelieve Florida got it mostly right.

JUL

2008

that you are not required to deliver disclosures is a very scary thing... so where do you think th is will end up? Not where you would like it to go, but where in fact do you think it will end up?

The double dip will not go away for a long time I think, so limiting the ability to represent to only one party may never happen, unless, as you say, we end up resenting no one in particular... I do not think this would be a good benefit to consumers... but then, I am against dual agency at its root...

Paul, I hoping that even though disclosures are not required that brokers will continue to insist their agents use them. I know I will.

I'm a big fan of transaction brokerage and really don't feel my customers are harmed at all by it. That's a good thing since I don;t see it going anywhere.

Dual agency will never make sense to me.

It all gets back to the cionsumer really just wanting to buy and sell real estate. It's my opinion, that only the very sophisticated buyer/seller care at all about agency. They just want to be treated fairly. We don't have to be agents to do that.

Also, we don't have to be an agent to represent someone. It's not the representation that's the issue it's the fiduciary that too many agents can't or won't live up to.

JUL

2008

Do you think that brokers will actually require the disclosures? In my experience, people tend to do the least possible if not required to do more... and also, I am not sure that "representing" a person's interest is that far from fiduciary... I suppose in terms of liability it is different, bu tfrom teh perspective of the client, I would think that the two are quite close... and many would confuse them... so if we dont go the agency route, we might want to NOT attempt to represent anyone either, as confusion would ensue, especially if the disclosures are not made...

I am not sure where I will come out on this issue... at least as far as doing away with agency... I need to stew on that some more...

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