Home Buying in San Diego>Question Details

Tyler, Home Buyer in San Diego, CA

Do I have to sign a dual agency disclosure form?

Asked by Tyler, San Diego, CA Thu Oct 14, 2010

I went to an open house that I want to make an offer on, but I am concerned that the agent (who held the open house) is working for the seller. Can an broker and their agents really adequately represent me in the transaction?

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Answers

23
It is perfectly legal for an agent to represent both sides in a transaction. It is a delicate situation since the listing agent obviously has a fuduciary relationship with his client, the seller. Whether or not the agent can protect your best interests at the same time is an uncertainty. If you feel uncomfortable in any way, simply find another agent to write the offer and represent you in the purchase. You are not bound to use the listing agent and are free to do whatever you want.
Web Reference: http://davekearneyhomes.com
2 votes Thank Flag Link Thu Oct 14, 2010
Hi Tyler - check out this blog post that explains the Disclosure Regarding Real Estate Agency Relationship - http://globella.com/website/blog/default.asp?Display=1651.

Justin
1 vote Thank Flag Link Thu Oct 14, 2010
Hi Tyler:

Yes, the agent holding the open house works for the seller. The listing agent wants to get the best deal for the seller, and you want to get the best deal for yourself. The dual agency signed form holds the agent to a high standard. Some agents are able to handle this with integrity. If you have any doubts at all, probably best to get your own buyer's agent who will go to bat for you.

Good luck to you!
1 vote Thank Flag Link Thu Oct 14, 2010
There are a lot of opinions here. But I do feel that an agent can represent both buyer and seller effectively. Do all of them do that? No. Of course you walked into an open house that an agent held open and that was the procuring cause of your intent to submit your offer. This is why I feel that you should give the agent a shot that held the house open. But have him or her show you the comps to justify your offer amount. Make them earn their commission.

This is what happens when you do not have an agent helping you find the best homes and negotiating for you from the beginning. My advice. Get an agent that will represent you from the beginning and that way you will be an informed buyer that can make informed decisions. When you walk into that open house next time you can let them know you are working with someone and that agent can help you make an informed decision if you want to submit an offer.

There is no substitute for the peace of mind you have when you work with someone you trust.

Good luck.
Jesse Madison
0 votes Thank Flag Link Wed Oct 20, 2010
Hello Tyler,

Yes, a Broker and their Agents who are acting in a Dual Agency situation can adequately represent you in the transaction. I cannot deny that their are Agents who are dishonest and act in their best interest rather than their clients. However, that is a reflection of the Agent as an individual and not the fact that they are working as a Dual Agent. That being said, there is one Agent who answered your question earlier who made the statement that "choosing a Dual Agent means you're guranteed to pay more for the home". That is an absolute dishonest statement to make. Please do not make the mistake of thinking that all Dual Agents will only represent the Sellers interest rather than all parties to the transaction equally . There are many outstanding Agents who have acted as Dual Agents in their careers, Agents who fullfilled their fiduciary duties to all parties involved and worked very hard to represent their clients equally. If you feel comfortable and confident after interviewing the Listing Agent that they will represent you and your family equally in the purchase of the home then great! If not, feel free to interview other Agents and go with the Agent you feel comfortable with. Good luck to you!

Matt
0 votes Thank Flag Link Tue Oct 19, 2010
Tyler:

Lots of good points here and lots of agents who want to write that offer for you!

Many, many years ago, when my wife and I bought our first home, we saw a house as we were driving around and called on the listing agent. We ended up making an offer with the listing agent and the way the agent handled the counter offer made it clear she was not looking out for us. As first time homebuyers, she thought she could take advantage of us and couldn't believe it when we rightfully walked away (She had probably already spent the extra commission she thought she was going to get by roping us in). She never showed us comps, never provided us any valuable input into how to write the offer. We didn't have places like Trulia like you do to get insight!

After walking away from that agent, we found our own buyer's agent and got a way better house for less than the price of the original. Just another example of why it is in your best interest to hire representation that will go out and get you what you want.

I know of another instance in which a first time buyer went with the listing agent and was convinced to pay out of pocket more than the appraisal value of the house partially because the listing agent was "contributing part of her commission." The listing agent couldn't deal with the seller's anger over the appraisal showing less value than what the seller wanted and so she got the buyer to make up the difference. The buyer got ripped off and paid too much and the listing agent still made an extra 1% on the sale.

So if you want to pay more, go with the listing agent. Otherwise, call one of us and we will take good care of you - you'll have objectively selected comps to base your offer on and will have a bulldog in your corner fighting for you and saving you money along the way.
0 votes Thank Flag Link Mon Oct 18, 2010
In my opinion, NO..Can it be done Yes..does the listing agent want 2 commisions YES.
If you work with the listing agent to buy a house..you do have a better chance at getting the house though and again..the agent wants 2 commision we call it double ending, double dipping etc:)
0 votes Thank Flag Link Mon Oct 18, 2010
Most of the time, the agent who holds the open house is the seller's agent. And, if you have fears about being adequately represented, it's probably best to have your own representation. Trulia is a great place to find an agent to help you submit your offer. They're diligent, experienced and highly motivated.

Best of luck to you!
Web Reference: http://www.DesariJabbar.com
0 votes Thank Flag Link Thu Oct 14, 2010
Hi Tyler

It is allowable for a Broker to represent both a Seller and a Buyer--as long as there is written disclosure and signed agreement. The written document is an agency agreement.

As your agent, the Broker and his colleagues owe a fiduciary duty to you. That means your interests are of more importance than his. In a dual agency situation, that is true of both the Seller and the Buyer.

However, if you are not comfortable with that arrangement, you should find a real estate professional to work solely for your interests.

Good luck!
Marilyn
0 votes Thank Flag Link Thu Oct 14, 2010
Yes...but feel free to contact a different agent. It was an open house. That's is designed to make it easy to see. I am sure the agent will be less than thrilled that you were not represented and choose not to use them, but will understand.

Good luck,
et me know if I can help you in any way,
Joan Wilson, Prudential California Realty
Direct: 760-757-3468
800-975-7481 x 111
JoanWilson@prusd.com

Find Your Dream Home:
http://JoanWilson.PrudentialCal.com
0 votes Thank Flag Link Thu Oct 14, 2010
No, no and no. And in case you missed it, no. If the agent showing the house is the seller's agent works for the listing company, GET YOUR OWN AGENT. So many horror stories of buyers like you "using" the seller's agent. Dual agency is NOT a good option for you. Check out my my website, Tyler, and the go to http://WWW.NAEBA.org. (I'm in Ohio, I don't want your business) Look up "fiduciary" in a real estate glossary or a legal dictionary. You need your OWN agent. It is NOT a win-win, don't believe that. That's sales-speak.

Good luck.
0 votes Thank Flag Link Thu Oct 14, 2010
Tyler,

There are two agency disclosure forms. The first which is a statutory document required by law is the Disclosure Regarding Real Estate Agency in residential transactions of 1 to 4 units.

The other optional form is a consent for dual agency which is not required by law, but is required by most brokers that do dual agency. A simple review of the form should really answer your question by telling you all the rights you are giving up.

Agency relationships are confirmed in the California Residential Purchase Agreement. The consent for dual agency is a lawsuit avoidance disclosure for the broker and agent.
0 votes Thank Flag Link Thu Oct 14, 2010
Tyler,

The agent working the open house may not necessarily be the listing agent (seller's representative) however the Broker is the same - which would be a dual agency situation. In most cases it is in your best interest to have your own Buyer's Agent who will be representing only your interests. The buyer's agent gets paid by the commission offered through the MLS from the listing agent - so there is no expense to you as the buyer!

If you don't have an agent, speak to your f riends and family for a good referral or check out agents on Trulia to choose one that will meet your needs.

In all offers the Agency Disclosure Form is signed by all parties (Buyer, Seller, Buyer's Agent, Listing Agent). It is not a contract, just a disclosure.

Kind Regards,

Marcie Sands, REALTOR
Simply The Best Real Estate Co., Inc.
Rancho Bernardo - PUSD
760-644-1567
0 votes Thank Flag Link Thu Oct 14, 2010
Tyler, that's a great question and valid concern. You will need to sign a "Disclosure Regarding Agency Relationships" prior to signing any offers with any agent, you do not however have be represented by the listing agent- you can choose your agent.


It is very possible for an agent to represent both the seller and the buyer, and if the agent is honest and ethical, it can be done very smoothly and be a win-win for both parties. Since the listing agent has a relationship with the seller, it can be a benefit for you since the sellers already trust the agent. Flip side is that the listing agent has a fiduciary duty to their seller to negotiate the best sales term for them.


If you're not sure about the agent, tell him you are considering using him, but would like to get recommendations from past clients- get their phone #s and call to see if they were happy with their representation. I've represented both sides in multiple transactions because I prospect every day and keep a database on all my clients of what they are looking for to cross-reference, and have had good success in these transactions- both parties were very happy.

Now if the agent who held the house open is with the same broker, but a different agent, that can also be beneficial because the listing agent represents the seller, that listing agent knows and would have some trust normally with that buyer's agent, and you have somebody actually representing you that isn't contracted already to the seller.



Good luck!
Aubree Kerrouch
http://www.aubreekerrouch.com
0 votes Thank Flag Link Thu Oct 14, 2010
In Ca, the legal answer is yes, but how can an agent sell a home for top dollar, which is the listing agents duty, and represent you and get you the best price for the home, which is the buyers agents duty. There are those who swear they can do it, but myy advice is to have someone represent you in the deal.
0 votes Thank Flag Link Thu Oct 14, 2010
Hire a buyer's agent. You don't have to pay them and they will do an incredible amount of work making sure you are a happy client whose legal and fiduciary interests have been protected. Don't even mess with dual agency . . . it just opens up the opportunity for complications. If you decide to hire a buyer's agent, please consider my services.

Good luck,
Jeff Larabee
619-840-6280
jeff@jefflarabee.com
Web Reference: http://www.jefflarabee.com
0 votes Thank Flag Link Thu Oct 14, 2010
Tyler,

Great question! You are sure to get many answers that it is perfectly fine.

In a dual agency situation the agent has fiduciary duties to both the buyer and seller. No matter how you spin it, the Seller wants to get the most money for their property, and the buyer wants to get the best deal - these are two different goals. You can't go to an attorney and expect them to serve opposing interests.

Having your own agent that has only your interest at heart is almost always a better situation. The listing agent has been hired by the Seller to get the best price for the home and may be hesitant to negociate the best deal or to disclosure problems the seller wants kept silent.

If the listing agent tells you that you're going to get a better deal with the seller paying less commission, you should be very very concerned. Rarely does saving 1 or 2% make up the difference of having your own representation.

When you sign the consent for dual agency you are giving up that right and also giving the agent permission to work multiple buyers against you in a bidding war. The permission for dual agency is very common in our industry since large brokerages want to represent both sides of the transaction, thereby making more money for the company. Even different agents in the same company will be dual agents for the seller on their listings.

By picking out your own real estate agent and spending some time with them you will know if they are being honest with you and looking out for your best interests. I have just finished a free paper on 9 tips for finding a real estate agent which you might find helpful. It talks about the problems with dual agency and gives you some general guidelines - the most important one being that you work with someone that is a good fit for you.

http://www.sandiegolifestyle.info/2010/10/how-to-find-a-realtor/

Secondly, single agency is one of my biggest goals in real estate and I have lots of information for you regarding what agency is and how to read the dual agency disclosure. You might find this information valuable.

The worst place to buy a home is from an open house. Get an agent and look at all the properties in the market to give you an idea of market value. The best homes sell quickly and you will want to be educated to know a good deal when one pops up.

I hope that this will help you and others that are concerned with dual agency.
0 votes Thank Flag Link Thu Oct 14, 2010
Tyler,
Dual agency can work. But the listing agent has a fiduciary duty to the seller first. Why not have another agent represent you that is only looking out for you? I can help you put together an offer asap. Contact me at 619 519 0683 so we can talk and get your offer in now. Good luck.

Alex Saavedra
Century 21Award
619 519 0683
alex@buysdhomes.com
Web Reference: http://buysdhomes.com
0 votes Thank Flag Link Thu Oct 14, 2010
Tyler.
Great question!

The agent holding the Open House was hired by the seller. While he/she can certainly complete the transaction for you, I would suggest bringing in an agent to help you in the process.

Your own agent can help you put together an offer that protects your best interests!

Regards,
Kristina Leyva
Windermere Exclusive Properties
kristinaleyva@windermere.com
0 votes Thank Flag Link Thu Oct 14, 2010
If executed properly dual agency can and does work--as to signing the disclosure--that's for you to decide, was it explained to you, will you be comfortable in such a scenario, or would you prefer an agent of your own--you can also consider to contact the broker owner of the realty office, if you like the agency, and ask to be assigned another agent-- or--- simply find an agent of your out of any realty office.
0 votes Thank Flag Link Thu Oct 14, 2010
Hi Tyler,
Technically the listing agent can represent both the seller and the buyer. However, the listing agent was hired by the seller to sell their house. You can choose to work with any agent or broker you want to.
Best,
Megan Deglow
Prudential California Realty
858.213.7121
megand@prusd.com
Web Reference: http://www.MeganDeglow.com
0 votes Thank Flag Link Thu Oct 14, 2010
Tyler: Dual agency is legal in California but it is beneficial for buyers to have their own agent represent their interests. The link below is a blog I wrote on the subject.
~~~
0 votes Thank Flag Link Thu Oct 14, 2010
Tyler

There are instances that the Listing agent represents the buyer as well. If you dont feel comfortable with the agent representing you (buyer) and the seller ask the agent to refer you to another agent so there is no Conflict of interest.

Good luck

Andy Del Real
Web Reference: http://www.AndyDelReal.com
0 votes Thank Flag Link Thu Oct 14, 2010
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