Professional Negotiator or Professional Mute? Dual Agency Limitations

By
Real Estate Agent with 310-508-4354 | FirstTimeHomeBuyerRealEstate.com BRE# 01728424

Professional Negotiator or Professional Mute? 

I was able to catch up on my blog reading yesterday and there was one in particular that really stood out to me written by Anna Krutchen titled "On My Planet Dual Agency Would be Banned - Nixed - Gone Forever." Anna keenly detailed what a dual agent could, and most importantly, could not do on behalf of their buyer/seller client in a dual agency transaction.  Writing about this hot topic takes a lot of courage, I know having written one about this subject a few years ago that had some agents wanting to put me in a cyber headlock.

DUAL AGENCY (in layman terms): When one brokerage (oftentimes the same agent) represents both the seller side and the buyer side in the same real estate transactionSorry, I can't tell you. :(.   

Excerpt from Anna's excellent article (with my commentary in blue):

"Dual agents may not advocate or negotiate on behalf of neither buyer or seller nor can they disclose confidential information that would place one party at an advantage over the other party (without the informed consent of the other party) such as:

  1. That the seller is willing to accept less than the listing price - This could save the buyer THOUSANDS maybe even TENS OF THOUSANDS of dollars!
  2. That a party will agree to financing terms other than those offered - This could save time and money!
  3. The repairs or improvements that a seller is willing to make OR buyer is willing to forego - This knowledge when used for either side could save that client THOUSANDS of dollars!
  4. The confidential motivating factors of either party - Any side that has or gains knowledge of a fast approaching deadline for the other side, whether it be for relocation, lease expiration, etc., could leverage that info to their advantage.  But if the agent who is privvy to this knowledge cannot tell the client that could most benefit from it because of dual agency, that great insight is hidden rendered USELESS, again because of the restrictions of dual agency.  

More than the article itself, one commenter struck a chord with me when he implied that outside of dual agency, the agents representing only one side in a transaction had to fight tooth and nail to "Win" so that their reputations would remain intact as opposed to dual agents that represented both sides in a neutral mediation type of transaction.  I strongly disagree.  Let me repeat, I strongly disagree.

When reading my commentary in blue to the bolded statements above, what part of that says win for the agent and what part of that screams and shouts win for the client?  It is our fudicary duty to our clients to help them negotiate and leverage any information that we have diligently obtained in order to position them in a way that effectively saves them time and money upfront, during the escrow, and in the long-run. A great Realtor only "wins "when they have saved their clients time and money that was up for grabs to save in the first place! 

Another thing that every buyer must consider when pondering using the seller/listing agent, is whether or not the agent will also be representing the sellers on their next purchase as their buyer's agent?  If so, that agent in most cases is still "trying to get the job" so to speak, so wouldn't it behoove him/her to remain on the seller's good side during the first transaction...your transaction. Hm.

Well in my opinion (and you know I have many), any agent working in the dual agency capacity faced with a situation of being forced to remain "closed-mouthed" and "neutral" on any advantageous info that could benefit a client, does that particular client a huge disservice, again in my opinon. Funny thing is, many agents that are for dual agency, upon hearing of a scenario that an agent had info that could've helped their client save money, but didn't share it, that same agent would in most cases consider that scenario agent to be irresponsible and less than stellar.  Go figure. 

One day buyers and sellers will realize when it comes to hiring professional representation to work hard on their behalf, they are hiring professional negotiators, not professional mutes. 

__________________________

Need someone to fight hard and SPEAK strongly on your behalf during negotiations as the listing or buyer agent?  Do not hesitate to call me at 310-508-4354 or feel free to visit www.FirstTimeHomeBuyerRealEstate.com 

Mime photo courtesy of Creative Commons  ; knittinjo on Flickr.

Comments (5)

Carla Muss-Jacobs, RETIRED
RETIRED / State License is Inactive - Portland, OR

A true fiduciary will put their client's position before their own self-interest.  Being a mute, err I mean negotiator, facilitator, designated agent does NOT allow for disclosure of important information that COULD, WOULD and SHOULD benefit one party . . . if both sides were represented by their repective agents:  a Buyers Agent and a Sellers Agent.   As a real estate agent, being nice, being honest is one thing.  But that doesn't mean I don't want the best deal for my clients . . . because I DO!

Apr 16, 2014 07:16 AM
Andi Grant
310-508-4354 | FirstTimeHomeBuyerRealEstate.com - Los Angeles, CA
Helping 1st time buyers and home sellers in LA!

Carla, it's a very precarious position for any buyer, seller and particularly an agent to choose to put themselves in. 

During an open house for a listing I had a few months ago, it was VERY tempting when the pre-approved buyer asked if I could represent her too.  I told her I was representing the seller 100% and if I represented her too then it would be diminished to 50%, but that I would be more than happy to refer her to someone who could give her 100%.  Even though some agents scoff at the thought, for me all money isn't good money especially at the expense of the fudicary duty I have to my clients.  My sellers LOVE me for it AND I have been over to the new buyer's home (she is no longer represented after the transaction) to see what she's done with the place, this transpiring when she called to ask a question (she already had the card from the open house).  She knows I know a lot about that home, the neighborhood and most importantly, appreciates how committed I was to my sellers.  When she is ready to sell...

Apr 16, 2014 07:57 AM
Gary L. Waters Broker Associate, Bucci Realty
Bucci Realty, Inc. - Melbourne, FL
Eighteen Years Experience in Brevard County

Always interesting to read this dual agency stuff. In Florida dual agency is not legal so it is not an issue I must deal with!

Apr 16, 2014 10:03 AM
Andi Grant
310-508-4354 | FirstTimeHomeBuyerRealEstate.com - Los Angeles, CA
Helping 1st time buyers and home sellers in LA!

Gary - count yourself lucky!  When acting as a listing agent it can be very tempting because who doesn't want more money and control over both sides of the transaction, and as a buyer's agent it is annoying when you've called, text, written and no response and property is still showing active, they've had an open house and tried to recruit your client who told them they were already working with an agent, only to find out it's been double-ended a little while later.  It happens a LOT in a seller's market.  Glad the tide is changing... 

Apr 16, 2014 11:00 AM
Gwen Banta
Sotheby's International Realty - Los Angeles, CA

Andi, I have discussed this with my buyers many times, as our company does not support dual agency for all the reasons you mentioned. One great point I had never pointed out,  but will from now on, is: "...Whether or not the agent will also be representing the sellers on their next purchase... that agent in most cases is still "trying to get the job."  Great point, and excellent post!

Feb 21, 2018 11:43 PM