I know, I know… we’re supposed to all say how we don’t like limited (or dual) agency because it makes us seem more respectable or feel better about ourselves or something. But this is one travesty that I have to defend because I care more about the truth and reality than I do about political correctness.
I’m up for a good debate right about now.
See, lost in the noise of endless proclamation about how dual, or limited, agency is bad and the laundry list of examples where it can be misused is a simple, yet glaring ommission in fact. When used properly, it is not only good for both buyers and sellers in a real estate transaction, but can actually be better for both. Think about it- one of the greatest challenges to a real estate transaction is communication. Honest and timely communication between parties. Having one agent representing both sides can eliminate much of that challenge.
People take time off, go through bad mobile phone reception areas, attend meetings, eat dinner, do myriad other things that make them unavailable to get ahold of. Coordinating disclosures, appraisals, inspections, title reports, settlement and reams of addenda can be the logistical equivalent of running in circles until you fall down. And trying to do these things with another agent who doesn’t understand the “Time is of Essence” clause of the purchase contract or is just lazy, careless, or simply tough to get in contact with can make the entire transaction frustrating and sometimes impossible.
So what are the limitations to limited/dual agency? The single agent representing both sides can’t disclose anything about either parties personal finances or motivation to the other party. That’s about the whole disadvantage. As if the buyers or sellers agents would “discover” all sorts of things they could tell their clients otherwise.
In reality we, as agents relay information from the other side to our clients, advise them, and then do as instructed. We don’t make decisions for the client. We enable them to make informed decisions and I do not believe that my ability to do so is damaged because I am getting my information first-hand rather than second-hand from the other side.
As with all aspects of agency, if this responsibility is not handled correctly or is misused there will be conflicts and problems. But that is not remedied by eliminating dual or limited agency- it is cured by eliminating the licenses of those individuals who conduct their business that way.
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I know that I’m one of those out there that has stated his case about dual agency and the negatives about it. When I read others who share similar views I generally agree with those views.
For me personally, it comes down to my comfort level. When I’m listing a SFR I generally do not like to represent both sides of the transaction. I’ve done it before and I’m sure I’ll do it again, but I have some conditions. Mainly that I truly inform both sides of the transaction that I’m the sole agent and that they are alright with it before proceding.
I’m also particularly loyal to a client. Be it a buyer or seller. When I first agree to work for one or the other I just want to provide the best service to them, to THEM. I want to be their attack dog so to speak. Again it is just a comfort level for me.
When I list raw land I find that I usually end up on both sides of a transaction. Normally these deals are cash transactions without too many conditions on the agreement. These are easy, basically slam dunk kind of deals. Still though, I disclose and be sure that both sides to the transaction are aware of my position in the deal.
I’ve found clients really don’t care all that much about dual agency. They just want to buy or sell property. They also think they’ve hired just the right professional to help them.
I know you ready for an arguement, and I bet I came up short. For me it just comes down to comfort in the transaction. Because I have had occasions where I simply referred out a buyer to another agent because I felt the negotiation would be tricky… and my instincts were right each time.
> I’m up for a good debate right about now.
That would explain all the linked quotations.
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Debate is ALWAYS good.
Greg, I totally agree with your post and with the comments (Greg Swann’s included 🙂 ). I totally agree EXCEPT from the standpoint of advocacy. Anything short of a full-price offer throws us into the realm of negotiating on behalf of our clients. If both clients are our clients, it makes it a little challenging to say the least. “That sounds like a fine offer. Let me send it to me, and let’s see what I and my clients have to say”. True, we take our marching orders from our clients, but most expect us to give them some advice and guidance along the way and to hammer out the best deal possible. Pretty tough to play “chicken” with myself. Even if you orchestrate the negotiations perfectly, it is highly likely that one party or both will leave feeling that you favored the other. There are times dual agency is appropriate or at least defensible, and we act as dual agents on occassion, but we do not seek it out, and we are always extremely cautious. My advice – Keep a good communication log!
Over the years I’ve consistently had a much higher percentage of dual agency transactions than the average agent. This is caused in large part because of the nature of my business, which is investments. One client is moving up, another is buying their old stuff.
I’ve not had a single problem with either clients or the transactions themselves because of dual agency. My clients know how transparent my operation is and how ‘total disclosure’ is my middle name.
The constant hand-wringing about dual agency in my opinion is due more to folks judging other’s integrity and the envy of a double payday than anything else. In 37 years I’ve been sued once, (not over dual agency, and I won) which is not what the folks deriding dual agency have been predicting.
Do your job well, be transparent, act like a professional, and go to the bank.
Kris,
You have game.
I agree with what you say up to a point. We differ because of the kind of clients we serve. Mine are investors. They love it when I call them with an income property which not only isn’t in the MLS, but isn’t listed yet. I’ve been told dozens of times by my exchange clients how much they love it when I handle both sides. They have been messed up by other brokers’ inability to perform and appreciate it knowing I’m going to come through for them.
A failed exchange isn’t just a shrug, and a ‘we’ll do better next time’ thing. It can be financially devastating.
Kris,
“True, we take our marching orders from our clients, but most expect us to give them some advice and guidance along the way and to hammer out the best deal possible”
I’ve found dual/limited agency to be much less complicated than maybe you have. And usually the transactions go smoothly and without many challenges.
I explain my representation and responsibilities to all of my clients the same way. When talking to a buyer I’ll say something like,
“My job is to make sure you have the best information possible so that you can make solid, informed decisions.”
And I let them make decisions.
If I represent the seller on the home they want to buy I’ll say something like,
“Because I represent both sides I won’t be able to tell you anything about the seller’s personal finances or motivation and I won’t tell them anything about your personal finances or motivation. I’ll still give you the best information I can so you’ll feel good about the decisions you make.”
And then I explain that a benefit to me representing both sides is that communication will be much more simple and the escrow process will be more efficient.
I haven’t had any problems and I’ve had a lof os successes representing both sides.
Some transactions representing both sides is not a good decision- there are always exceptions- but in general it can be a very good thing for everyone involved.
Your argument for dual agency is it makes it easy to get in touch with the other party’s agent… you’re him. You say the argument against dual agency is bogus – it assumes that the agent who practices dual agency is unethical. So, dual agency is good because it eliminates the lazy agent from one side of the equation, the one that you can represent, too; but dual agency isn’t problematic because when a buyer and seller are both depending upon an unscrupulous agent… the same agent in your supposition, then
Isn’t that using the same argument but changing the outcome to tell your “side” of the story?
My experience is pretty straight forward: if I couldn’t represent another party when the first party is my parents, or my sister, or my dear friend, why should I treat any client with less care? Of course, having a lazy agent representing the other party in my client’s transaction isn’t the optimal situation — it means I’ll have to pick up the slack on my end — but I’ll know that I’ve served my clients as well as I would take care of my mother and father.
Cathleen,
I’m not following your train of thought at all…
My argument that dual/limited agency can be good is that it can improve the communication between parties and can ensure a smoother transaction.
“…but dual agency isn’t problematic because when a buyer and seller are both depending upon an unscrupulous agent… the same agent in your supposition, then…”
I don’t even know what that means…
The argument against dual/limited agency is that you can’t represent someone (in your example- your parents) as well if you also represnt the other side.
I do not agree with that. Other than not disclosing anything I might discover about the other side’s personal finaces or motivation there isn’t any benefit to only representing one side- and in reality how often do you really discover pertanent information about the other side’s personal finances or motivation that they don’t want you to know?
I would have absolutely no problem representing my parents buying a home that I also represent the seller. Why would I?
What…? Do your sellers usually rake the buyers over the coals and demolish them during negotiations and you couldn’t do that while representing both sides?
The buyer and seller have the SAME objective. They both want to sell this house to that person. I help them accomplish that with as little stress and challenge as possible.
Your argument doesn’t make sense and doesn’t hold water…
Actually here in NY – there are only agents who represent the seller side, but work with the buyers. This is because we do infact have attorneys involved. I have never dealt with a buyer agent. I do my own open houses for my client/seller and act as an agent for my customer/buyer. It is very easy. I play moderater and help the process along. I have been in senarios where buyers point out ask “what’s the lowest they will go”. “My answer is make an offer and we will find out”. From the starting point of negotiating – I work for the seller. I can not and do not divulge any information that could affect the seller. I can not let the buyers know that they are getting divorced, someone lost thier job, etc.. In that aspect, I am the agent for the seller and I protect the seller. If they buyer wants to buy the house they have to come to my sellers terms. End of story. Once the seller has accepted the offer from the buyers and inspection has been done – I change hats. I help out the buyer. I now work with the buyers. They both have attorneys and I am the go between. I stay ontop of my buyers to make sure that they are doing what is need from them to obtain a mortgage and I stay ontop of the attorneys to make sure all is going well on the sellers side (pulling title, survey, etc.). Once it is time for the appraisal – I am there. I attend the closing. I just worked for my seller and with my buyer. There was nothing unethincal in how they deal closed.
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Daniel (Charlottesville Area Real Estate Blog),
Or anyone else on the side of this debate that thinks dual agency is never good-
Give me some examples of things that you would be able to tell a client that would not be able to tell them in a dual agency situation.
Let’s get out of the perceived harm and into real world, actual examples of your side of this debate…
There are no absolutes. In some instances dual agency can be bad, in others it may benefit both parties.
I detailed this once upon a time on my blog, but I had a transaction last December. The seller was looking to save money on commission. I told him the only way that I would reduce is if I’m working multiple deals or if I bring the buyer to him. In this case, I knew of an investor looking for properties in this townhouse complex. This all was discussed with the seller before we signed the listing agreement, before I represented him. We put the townhouse on the market and got three offers, all around the same price. The seller elected to accept my buyers’ offer because of the higher net with the reduced commission (the variable commission had been disclosed in the MLS.)
In this case, both buyer and seller were made aware of the issues with a dual agency situation. Both knew some of my regular duties would be curtailed so as to be fair in my dealings with both sides. And both walked away happy when the deal was done. Both still are happy eight months later.
We spend a lot of time wringing our hands over the evils of dual agency when, in truth, there are many consumers who have no issue with such a thing. We’re attempting to decide what is good for them rather than allowing them the opportunity to make an informed decision of their own.
Jonathan- great point. It’s all about the client. We explain things and educate them and give them the best information we can and we allow them to make decisions.
Under our fiduciary duties we owe the clients:
Loyalty
Disclosure
Confidentiality
Care
Accounting
Obedience
So I educate them with good information and my professional opinions and allow them to make decisions, then I do what they ask me to do (Obedience). And I do this whether I represent one side or both.
The issues that is debated with dual agency is disclosure. But my question is- exactly what would come up in a transaction that I would not be able to disclose to the other side that would effect my ability to help that client if I represent both sides?
You asked for examples. I have a few, but will limit it to two representative ones. As the buyer’s agent the listing agent in casual conversation informs me her client is moving to temporary quarters as a result of a delayed close on new construction. My buyer loved the slate pool table in the lower level. Because of the “move twice” info given me, I suggested we ask for the table as part of the purchase. We got the table. If I had represented the seller as well as the buyer, I could not have conveyed that “confidential” info which the incompetent agent did convey. Second scenario is similar to the first. I asked seller’s agent why the master bath did not have a tub as the space was there. “Well, my client’s dad is a plumber and they were always going to . . .” You guessed it. Again I received confidential info that, because I was not a dual agent, I conveyed to my client and we requested the tub, surround and shower that my client provided be installed before close. Because I am a good agent, that info would be kept confidential from either party and the buyer would have a less advantageous purchase as a result. Third scenario was not mine. Before I was in the business my friends purchased using the same agent as the seller. The seller had lied on the disclosures and the buyers finished the basement based on a dry basement disclosure. Neighbors said, “They got water in the basement every time it rained.” Friends were given no help on how to go to arbitration by the agent. Plus they felt kind of awkward when they had a casual friend in the middle. Their loss because they chose not to proceed. Yes, but the agent’s reputation was smeared in the process. Will they ever do dual agency again? Absolutely not!
Bonnie, thanks for the examples, let me tell you why none of them hold any water with me…
The first example is a little odd to me because why would the sellers need temporary housing because of delayed closing on new construction? Why not just hold off on selling their home or negotiate a rent back or an extended closing? Anyway- you say they did so they did.
If the seller gave away the pool table because they didn/couldn’t move it twice or into their temp space- do you think they would have otherwise held onto it? If they couldn’t move it into the temp space or didn’t want to move it twice then they were going to get rid of it anyway.
If my buyers like something in a house I always tell them that everything is negotiable. If I represented the buyer and seller and I knew the buyers liked the pool table I would probabl ask the sellers if they wanted to leave it because the buyers liked it. Either way- my guess is they left it because they wanted to or it made sense for them, not because of your incredible negotiation skills or your stealthy information.
“Well, we real don’t want to leave the pool table, but since the buyers know we are moving twice I suppose we simply have to leave it now. They’ve totally got us.”
Second example;
So because you knew the sellers had planned to put in a tub eventually- that means that your buyers had some advantage in negotiation? If I represnted both sides and the buyers wanted a tub put in I would suggest they ask for it and see what the sellers say, whether or not I knew they would. I always suggest that people can ask for whatever they want, especially if will make or break a sale. My representing the sellers would not have prevented me suggesting that the buyers ask for the tub.
Third example is just way off-
Anything pertaining to the condition of the house has to be disclosed no matter who I represent or what kind of agency is involved. That is not an agency issue, it’s a disclosure item where the sellers lied and it wouldn’t have been prevented if I only represented one side versus both.
Bottom line is that in each of these situations I don’t think your “Special” information made the sellers do something they weren’t otherwise willing to do.
We all like to think, and many put it in their marketing, that we are incredible negotiators and we can swing a deal by our sheer dominance at the negotiation table. And this is, of course, ridiculous.
Buyers and sellers make decisions and we help them get things accomplished and ensure that things get done, but it’s just not as dramatic as most of us want to convince people that it is. When an offer is presented on a property I have listed- it comes in by fax and I present it to my sellers and ask how they feel about it and give them their options and answer questions. If I represnt a buyer I fax over an offer for them and I’ll call the agent and let them know about my offer and that the buyers are pre-approved and that if they need anything else to let me know and thank them for presenting it.
It’s not like the buyer and seller’s agents lock themselves in a room and fight it out until the deal has been negotiated and then they tell their clients what was decided.
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