Profile picture for Montanapal

My agent asked me to sign "Dual Agency" waiver. I like my agent, but I don't like the waiver.

I want to make an offer on my dream home, but my agent says I have to sign a "dual agency" waiver before proceeding. Apparently the agent listing the property works in the same office. After reading the form, I'm worried my agent won't be able to really represent me and my interests. She's a great agent, and came highly recommended, but through no fault of hers, she's practically worthless. What are my options? She's been so great up to this point!

  • September 01 2010 - Anthem
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Answers (26)

Best Answer

 Dual Agency can be a very slippery slope.  And it's not uncommon for professional agents to use terms similar to your's to describe their ability to act as an effective and helpful advisor when dual agency pops up. 

According to the rules and laws that apply to real estate agencies (i.e., agency brokers or principles,) all information brought to the attention of a real estate agent is considered "imputed" (or "transferred") to his or her principal. So, while it seems you have exclusive representation, the same broker bears responsibility for both sides of the equation.  Therefore, in a dual agency, the broker has "implied" knowledge of all facts and conditions material to the buyer's and seller's negotiations and purchase agreement.

If you really like –and trust-- your agent, then set aside any concerns about hurting her feelings.  Even if you are friends, remind yourself that this is a business transaction, and you've hired a professional to work for you and be your trusted advisor and expert throughout the home-buying process.  Ask her to talk about how this waiver will impact the negotiations between you and the seller, and especially how it impacts her ability to provide honest, open and unbiased counsel for the remainder of the transaction. If you don't like –or are unsure of-- the agent's response, then you have a decision to make ...  If your criteria in hiring an agent is to employ someone you trust to provide intelligent, unbiased and honest advice --and she's told  you that the dual agency will reduce her effectiveness in those areas-- then you must be true to yourself and to your business interests.  

Most good agents put the clients' interests first, and those same agents -- albeit regrettably-- will help transition you to another agent working under a different broker that can step in and take over as your trusted adviser. 

Professional agents understand that in the end, it's nothing personal; He or she hasn't done anything to cause you to mistrust his or her advice and counsel going forward … except for the fact that the condition of dual agency clearly impacts the broker's –and therefore the agent's-- ability to fulfill his or her fiduciary responsibility as a trusted , impartial and effective adviser.

As far as the agent's commission, your agent and the "new" agent --vis-a-vis their respective brokers ultimately-- will work out the details to ensure that both are compensated for their time.  You should not have to be concerned about --or responsible for-- negotiating the amount or settling any disagreement that may arise over the split.

  • September 01 2010
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In Illinois,  If you want sole representation, your agent may still write the contract & sell your property and not as a duel agent but representing you and disclosing to the buyer as ministerial acts.  The new buyer may use an attorney or get other advice.
  • March 29 2011
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Profile picture for Curt Hess
Yo, MontanaPal, calling your GREAT agent "practically worthless" just ain't nice. Really. 

There is absolutely no reason not to trust your agent in looking after your best interests just because the listing agent happens to be in the same office. The best (and most active) agents must do this regularly. Just part of the business. 

We are professionals, and the LAW says we have to abide by very strict rules in this case. Failure to do so could result in loss of license, and I assure you that we will not risk our careers to be "friendly" with an office mate. No way.

So, please, keep trusting that agent you've come to know so well. 
  • March 27 2011
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Find an EBA ( Exclusive Buyer Agent) in your area. This is an agent that represents Buyers 100% of the time. Their firm does not take listings and never represents the interests of Sellers. EBA's never "dual"!
  • March 25 2011
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Do you trust your intuition?  When I listen to my gut instincts, I tend to be be happier with the outcome.
Remember as a Buyer you are in the driver's seat as to how you wish to be represented. I suggest that once you understand the options you have (including "no agency") for representation in this transaction, that you have the agent representing you, if any, put this in writing and make it part of the transaction agreement.  That way you will be clear that all parties agree to how the agency relationship is defined in this contractual agreement.  Congratulations on finding a property, that is wonderful news in this Buyer Market!
  • March 25 2011
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If you really like this agent tell her you will sign a Buyers Broker agreement, but not a dual agency agreemtn. Would you hire an attorney that would represent bot the plaintiff and the defendant in the same case? That is basically what a dual agency does. Be careful.
  • March 25 2011
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I agree with Robert.  I recently had a situation where the homes was listed "in-office"  I did not even know the agent at all.  And also she was hard to get a hold of.  Your Realtor will have your back.  Wondering why she is worthless at this point.  Has she not helped you?  Sad.  You can talk to the broker about what it means to you, and they will help you understand what it all means.  Just ask, it make a difference.
  • September 11 2010
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Technically, the broker is representing both the buyer and the seller. However, in actual practice, many times the agents don't know or barely know each other, so the transaction will proceed the same.

Even in pure dual agency, such as buying your agent's listing, she still would owe you honesty, obedience, etc. Merely she wouldn't be able to advise you on such matters as price, where her alliance would be split, due to knowing things a non dual agent wouldn't know.

My company has hundreds of agents, I only know a very few, so in most transactions I wouldn't have any special knowledge even if the listing were from my company.
  • September 04 2010
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If your agent's office allows designated dual agency, you might be better represented. That means that two brokers are operating with more of a "wall" of privacy between them than they would under normal dual agency. Unfortunately, in dual agency, because each side is also an agent of the other principal, the  fiduciary concerns of working toward the best price possible for each principal are in conflict and that is the reason for the waiver. It is actually the "firm" that is your broker, and now the "firm" knows both how high YOU will go on the price and how LOW their seller will go. I am sorry I don't have better news, but it is not wise to assume that each agent will maintain confidentiality unless they practice something called designated dual agency.  Good luck!
  • September 04 2010
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Why would you think she is worthless!
It may work to your advantage as the other agent knows her and respects her, as you have up to this point. The other agent can trust her word also.
In fact I myself do many 'dual agencies' I have listed and sold many of my own listings.
I believe it can help me to actually get the offers accepted as I know what will put the deal together. I do not dvulge anything unless the other party wants me to.
I feel it is a win/win situation.
The objective is always the seller wants to sell and the buyer wants to
buy, so lets make it happen.
So when it is just that the agents are from the same agency, I do not see why you would have a concern.
Why think your agent is worthless because of this situation.
Good Luck!
Judy Berg UBG, Chandler Az
  • September 03 2010
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Montanapal,

 

I think your concerns are unwarranted. Your agent isn't listing the property and in all likelihood doesn't know the Sellers or have any connection to them. Why do you think she's worthless. If she's been great all along I see no reason to think she won't continue to be great and will do a good job representing you. When the day is done she can't make you pay any more than you want and she won't be speaking to the Sellers, their agent will be.

 

I specialize in Buyer Brokering and while I would never represent both parties in one transaction, I have no problems and see no real issues in representing a client who ends up wanting to buy a listing that another agent in my office may have. Were all independent contractors.

  • September 03 2010
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Profile picture for Michelle Mozell
Hi "Montanapal,"

Your concerns are valid. If you are uncomfortable with Dual Agency speak with your agent about, perhaps, referring you to an agent associated with another brokerage for the transaction in question. As a "great agent" I am assuming you would retain her representation in any transaction that is not in conflict, correct?

However, as a broker who has run several brokerages as both Designated Broker and owner, and as an Associate Broker representing both sides of several transactions within Dual Agency, I disagree with Eve Alexander.

Though several states outlaw the practice (out of the same concern you express), Limited Dual Agency ("Limited Dual Agency" is two agents in the same brokerage and "Dual Agency" is one agent) is not "impossible." Even "Dual Agency" is not impossible in the hands of a very careful and diligent agent. If this were not true the states that allow such a practice would ban the practice.

But brokers and salespersons of such care and caliber DO exist. (I am but one example....)

Nevertheless, you are in control and your comfort is paramount. I am very sure your agent will understand.

Good luck to you!
  • September 02 2010
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If she was such a great agent, she would have disclosed being a double agent prior to showing you the property.

Homebuying is an adverse position.  Seller wants the highest price with no contingencies, Buyer wants the lowest price and most favorable terms.

It is impossible to "represent" two parties that have opposing interests.

Eve in Orlando
  • September 02 2010
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Find a member of NAEBA (National Assoc. of Exclusive Buyers' Agnets) in your area. These agents work only for buyers and take no listings, so you have someone that represents only YOU.
  • September 02 2010
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Just be honest and tell her why this concerns you.
  • September 02 2010
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Profile picture for Ofe Polack
If you buyer agent came highly recommended and she is a great agent, have a word with her and share your apprehensions.  Maybe she will be able to put your mind at ease.  Before the differenciation between listing agent and buyer agent came about, there was no big thing about selling your own listings and/or agency listings.  The most important thing in any transaction is to feel comfortable with the Google "dual agency in realestate" and read what the agents responsibilities are.  I have been dual agent many times, and have never had any issues with neither seller nor buyer.  
  • September 02 2010
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It's overly complicated and the agent is only doing what she is supposed to do.   If both agents work at the same brokerage, and contracts are owned by the broker, then in reality the same broker is on both sides of the deal.  They are just trying to make sure that everyone understands by making proper disclosure.   That doesn't mean that you won't be well represented.   I treat these deals like any other - I rarely even know the other agent at my same company and I go about representing my client and the other agent does the same.  
  • September 02 2010
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If there are two different agents involved (the listing agent is not your buyer's agent) then my take is it's fine.
  • September 02 2010
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Though not the ideal situation, it's not impossible. I have been in dual agency representations many times with excellent results. If you are comfortable with your agent, but not with the dual agency arrangement, discuss it with your agent. A responsible agent should assure you of their obligation to both parties. If you still feel uncomfortable with the situation, discuss it with the broker. Trusting your agent is of utmost importance with or without a dual agency representation situation. Good luck.
  • September 01 2010
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Profile picture for broker_GRI
Yes *Dual* not "duel" my second major "syntax error" this week;-)
  • September 01 2010
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I would like to reiterate that I have personally seen very little increase in inappropriate behavior from this form of dual agency (anecdotal, I know). You are in a much more precarious position when the version of dual agency is the same agent getting both sides of the commission...which I have personally done, but will only do if I am 100% sure it can be fair to all parties (such as an in-family transaction where everyone agrees on a price, or in a stable market where home prices are very evident and I can ensure by taking a lower commission that both the buyer and seller are getting a fair shake). A creepy person will be a creepy person regardless of their agency status. One could argue no buyer representation is free of the influence of price since nearly all agents are compensated from commissions negotiated by the seller.

You either trust the agent or you do not. If you don't, then run screaming for the hills. If you do, just be extra mindful - but this truly is a very common practice - especially when you have larger agencies. It is possible the agents don't even know each other.

I frequently point out agent folly on this site. I think this is certainly a "lessor crime" scenario than an agent who talks about buying based on frivolous, irrelevant, or economically unsound reasons.
  • September 01 2010
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I absolutely detest dual/duel agency, and personally think it should be banned/outlawed. However, in Arizona it is still considered by the 'powers that be' to be legal and ethical. My personal way of thinking about it is an agent goes from assisting and representing a client to merely facilitating the transaction.

Did you sign an Agency Disclosure and Election Disclosure? On that form, did you agree to a dual representation contingency?

You are under NO obligation to go along with this arrangement. You are the client, and you are entitled to full representation. Accept nothing less.

IMHO.
  • September 01 2010
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Hi, Montanapal -

You say she's practically worthless, but great at the same time. Hmmmm....  Hopefully, she is great and someone that you have built repoire and trust with.  As the others have said, it's very common to have agents in the same office represent both sides of the transaction.  The agent's principle broker probably requires all of their clients to sign the waiver.  Without seeing the waiver, it's hard to know exactly what could be a potential concern.  But, in general, if you trust your agent, then you should feel comforable moving forward with buying your dream home!

Best of Luck!

Rebecca Carlson, Coldlwell Banker Bain

  • September 01 2010
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It is a very common thing to have the two agents involved in the transaction working for the same broker.  Some brokers have hundreds of agents working for them.  Your agent has a duty to represent your best interests at all times.  Buy the home if it is right for you. good luck!

  • September 01 2010
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Profile picture for broker_GRI
Tiffany has given some excellent advice.
Duel agency is not typically something that I advocate as a general rule but it is possible for both you and the seller to get what you want out of this.

If you are comfortable with the agent you are working with, that is a really good start.

While this type of agency relationship may not be ideal, it will happen, especially in a busy real estate office.

  • September 01 2010
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Working in the same office isn't always a sign that nefarious dealings will go on. How large is the office? Are the agents particularly chummy? Are there any huge red flags that her conduct has changed? If she suddenly starts acting bizarre or starts giving information that sounds drastically different than before, it might be time to run. Otherwise, you might just have an attorney look at the form and proceed.
  • September 01 2010
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