Is there risk in holding a house open when it's listed with a different company??

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I recently heard in my office a discussion about open houses.  One agent mentioned that when he needed one,  he would call a top agent from another company who works the area and hold one open for him.  He's got so many,  the agent said, he can't hold them all open this weekend. 

Another agent piped up and said,  I have had agents call me from smaller companys asking if they could hold one of my listings open.  If I am not holding it open myself,  I always let them.

Let's think through this.  An agent is liable for any misrepresentations that the seller tells them.  A seller is liable for any mistakes or misrepresentations that an agent working for them makes. So how would liability work if the agent holding the house open  picks up a buyer.  Are they a dual agent?  Isn't the open house person holding the house open and representing the Seller, even if they are with a different firm?And,  if you are a dual agent,  what company logo goes on your flyer.

I am not sure of the answer but I can tell you in my legal work as an expert in litigation cases,  I think that a case could be made that the agent holding the house open is representing the seller,  thus is taking on liability for the seller and the house,  which they know NOTHING about.  Can't you just imagine a seller during the trial (I love to say that),  testifying that he never met the agent holding the house open and he couldn't imagine wherre the agent got the information that he told to the buyer.

Also,  I thinka  case could be made to drag the open house agent into a case if he passed along the wrong information to a buyer. 

All in all,  sometimes the best of intentions can have negative consequences.  Before you do this, have your broker run this by your company attorney.

 And remember,  agency created,  even if a contract never gets written the minute you start sharing information.

Posted by


Guy Berry

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Comments (5)

Robert May
Robert W May - Lethbridge Real Estate - Lethbridge, AB
Real estate consulting

I haven't had this happen, due to market conditions, for many years.  The parties involved just need to have a comlete understanding of the laws of agency and it the client must consent in writing.  The larger picture to this situation is that depending upon the agency laws in your juristiction (we have just moved to transaction brokerage model) both entire brokerages are considered to be co-agents on the transaction which opens the doors to all sorts of potential scenarios that you just do not want to have to deal with.

Aug 26, 2009 05:47 PM
Carol Pease
JP & Associates Realtors - Bastrop, TX
CRS, Broker-Associate 512-721-6320

Hmmm,  that would be something I would not do.  The house is listed with the broker.  You work for a different broker.  You can only work for one broker at a time.   I think that is the issue here. 

Aug 26, 2009 05:48 PM
Richard Dolbeare, R(B)
eXp Realty - Wailuku, HI
R(B), ABR, CRS...Hawaii Multi-Island Specialist

I think a good attorney can make any witness "dribble" on the stand, regardless of how competant that witness may be. 

Aug 26, 2009 05:49 PM
Erby Crofutt
B4 U Close Home Inspections&Radon Testing ( - Lexington, KY
The Central Kentucky Home Inspector, Lexington KY

And then there's the good witness who can make an attorney dribble and look the fool.

If you do much legal work, Guy, I'm sure you've seen that and perhaps even done that!

Aug 27, 2009 01:05 AM
Cheryl Willis
RE/MAX Solutions- OZARK MISSOURI - Mount Vernon, MO
MO Broker - Mt Vernon, Monett, Aurora, Barry & Law

My take is that by having the house in the MLS all the agents are starting from the point of sub agents for the seller until they have written notice that they are working for the buyer.  A agent who 'works' someone else's open house is looking for buyers and is working for himself.  (aren't we all independent contractors?)  The down side of having an out side agent do your open house is they have no loyalty to the seller other than to open the door.  The smart thing to do is a MLS Data Sheet and keep your mouth shut!  You can bet that if the buyer shows any sign of not being interested the agent is going to work on getting him into another property at first available moment.  The second agent is not there to sell THAT house, he is there to SELL himself to potential buyers.  I don't have a problem with it if your seller doesn't.  Truth is that even if it IS you Listing, you are going to upsale to to the lookers too.  cw

Sep 04, 2009 07:14 AM