Question: If my listing agent has a potential buyer, does he have to represent both the seller and the buyer? – Michelle G.
Reply: The agent who listed your home contracts with the broker who is your agent in the sale. You have representation, so the question is, will the buyer request representation and, if they want representation, can they use the same agent who listed your home? Ultimately, that decision will be yours. Here is some information to help you make an informed decision.
Each state has agency and agency relationship laws. These laws vary in theory and in specifics by state, so this answer assumes you are selling Wisconsin property. You can seek specific advice from your listing agent’s broker if you are located in another state.
Wisconsin listing and sales contracts require both buyer and seller to make an agency decision at some point in a transaction with that language:
“Check only one of the three options below:
______ 1. The same firm can represent me and the other party as long as the same agent does not represent both of us (multiple representation relationship with the designated agency.)
______ 2. The same firm can represent me and the other party, but the firm must remain neutral, regardless of whether one or more different agents are involved (multiple representation relationship without a designated agency.)
______ 3. The same firm cannot represent both me and the other party in the same transaction (I reject multiple representative relationships.)
Note: All clients who are party to this agency contract consent to the selection checked above. You can change the selection by written notice to the firm at any time. Your business is required to disclose to you in your agency contract any commission or fees that you may owe your business. If you have any questions about the commission or fees you might owe depending on the type of agency relationship you choose with your business, you should ask your business before signing the agency contract.
The devil in the details
Multiple representation concerns clients, not clients. Multiple representation can only exist if the buyer and seller are clients of the same real estate company. If a buyer is not looking for an agency relationship, then the buyer is a client, as opposed to a client, which relies on the seven obligations that all brokers and agents must fulfill. all parties to the Wisconsin transactions. These duties are:
- Fair and honest treatment. Answer questions honestly.
- Reasonable skill and attention. Market conditions, real estate law and third party recommendations.
- Disclosure of Material Adverse Facts. Facts that a consumer cannot detect unless the law prevents it.
- Confidentiality. All facts should be kept confidential.
- Provide precise information on the state of the market. Non-biased statistical market data. No notice of value.
- Accounting. Protect all funds and account for them in a transaction.
- Objective presentation of offers. Impartial presentation of the pros and cons.
Under the circumstances you describe, if the buyer decides they want an agency contract, then you must choose between option one, two or three above. Only the second option allows your agent to represent his buyer.
Agency issues are complex. Agency law regarding obligations to each party, timing of disclosures, and agency choices can be difficult to enforce. The law is complex, the circumstances that arise in a transaction are complex, and many real estate agents, including buying agents, cannot adequately explain the agency. Add some crucial deadlines requiring very quick responses to this recipe and an elixir of confusion and misunderstanding is possible.
The broker’s agent
A good listing real estate agent (ethical, knowledgeable, efficient) can treat both sides of a transaction fairly. The best defense a salesperson has against being treated unfairly is to choose your agent wisely. As the buying agency grows in popularity, exclusive buying agent companies represent a small percentage of the market.
The buying agency has circumstances in which it can be useful, and in other situations, not so much. It is the buyer who decides what type of agency they will use to purchase a home. Depending on the condition and choice of the buyer, the seller may also be called upon to make a choice.
For 25 years, agency issues have been the subject of debate in the real estate sector. The industry is slowly integrating the concept. The answer to your question depends on your level of trust with your agent and the circumstances of their relationship with the buyer.
Richard Montgomery offers real estate advice to readers. He is a real estate industry veteran who has championed reform of the industry for over a quarter of a century. You can ask him questions on DearMonty.com.