The concept of dual agency – where a listing broker also represents the buyer in a real estate purchase transaction – has been a subject of contention for a long time. Most listing agents dream of representing both the seller and buyer, as it leads to a bigger paycheck in the end. Of course there is a lot of paperwork both sides must sign to indicated that they are aware of the dual agency – this of course is designed to protect not only the parties to the transaction but also the agents and brokerages (hint hint: to try to prevent lawsuits).
Opponents to dual agency – and I happen to be one (in most cases) – argue that the listing agent’s first duty is to the seller, and that can hurt the buyer in the long run. Here are 3 reasons why buyers really should have separate representation when purchasing a home:
1. Allegiance to seller first: As a representative of a seller, an agent has a duty to uphold the sellers’ best interests. A buyers’ agent has the same duty to the buyer. If one agent represents both parties, you can see how this could be a big problem for one party – and the buyer is the one who usually gets the short end of the stick. For example, let’s say the seller tells the listing agent something about their situation that will affect the price or other aspect of the sale. The buyers’ agent’s job is to get the best price for the buyer, but the listing agent’s duty to the sellers (to not disclose confidential information that could affect price or other key components of a sale) clashes with the duty to the buyers – how can you get the best price for your buyers if you cannot tell them what you know on the seller side that could help them? Someone is getting left in the cold, and it is almost always the buyer.
2. Negotiations: The agent is often privy to certain information that will help in negotiations on behalf of the seller, such as the sellers’ bottom line price or other information that could assist in negotiating on their behalf. As mentioned above, this could detrimentally affect the buyers’ negotiating powers because the agent’s first duty is realistically to the seller. It is imperative that buyers have a representative who looks out for their best interests exclusively.
3. Agent Misunderstanding. As you can see, there are big problems in representing both parties. One of the biggest of all, unfortunately, is that many agents do not understand the legal ramifications of doing so. Many brokers do not oversee these sales closely enough, and the agents are left to handle them to the best of their abilities. This can and does lead to lawsuits down the road if the agent is not careful what s/he says or does, discloses or doesn’t disclose. You can see how it is the buyer who will suffer.
While I am a proponent of separate representation for the buyer and seller in a real estate transaction, there are situations where dual agency can actually be a benefit for all parties involved (commission alone should NEVER be a reason for an exception). One example is where the seller is financing part or all of the buyer’s purchase. The dual agent can be instrumental here in figuring out details. Of course, separate agents for each party can also do this. Some other situations do make sense at times, but the bottom line is that if you are a buyer you should have someone looking out for your best interests first and foremost. When you call a listing agent about a property their goal is to sell it. With a buyer’s agent that person’s goal should be to sell you the home that best meets your needs, with the ability to represent your interests exclusively.
If you are in the market to purchase a home or income property, strive to find an experienced and informative area agent to assist you – one who has strong negotiating powers and a keen sense of the legal aspects of the sale. If you do find yourself in a dual agency situation, make sure you involve the agent’s broker so that your best interests are not jeopardized.