The California Supreme Court will soon have a chance to review the practice of dual agency, where a broker (either through one agent or two agents who work for the same broker) represents both the buyer and seller in the sale of real property. California is a state that allows this practice, although the California Association of Realtors has penned rules that require full disclosure of such situations to all parties. Nevertheless, when one agent/broker represents both sides of a sale transaction there is a big conflict of interest, and the possibility of misrepresentation and breach of agency duties is highly possible. I have always been against dual agency, but I have represented both buyer and seller in transactions – there are rare situations where the scenario can work effectively. I think it would be better for all sellers and buyers if it were not allowed.
Here is an example of a typical dual agency dilemma for an agent: If a seller tells his agent something in confidence, say what is his bottom line for an acceptable sales price, and that agent then represents the buyer – who asks what price they should offer on the home – the agent is placed in a very precarious situation. The agent in this example owes a duty to both sides, but how can she answer her buyer’s question without betraying the seller’s confidence? She knows what the seller will take, but it is her duty to get the seller the best offer possible. Similarly, it is her duty to do her best on behalf of her buyer now, so it puts her in a hard place.
The case at hand stems from a sale of a luxury home in Malibu, in which the buyer (represented by a Coldwell Banker agent) claimed the listing agent (a different Coldwell Banker agent) failed to disclose to him that his home was much smaller in square footage than advertised – this claiming that the price was inflated for the size of the home.
I believe that dual agency should never be allowed unless the broker is also an attorney, and even then I have doubts. After all, it is not allowed with attorneys – could you imagine hiring counsel for the opposing side in a court battle! This is a very sensitive area and many agents do not understand the legalities involved. It will be interesting to see what the court decides.