Some intelligent and otherwise very successful people do epically dumb things when it comes to buying and/or selling real estate. Failing to completely understand dual agency in Georgia and permitting it is at or near the top of the list. Simply put, dual agency is allowing the same agent to represent both buyer and seller in a real estate transaction. The agent or broker has a client relationship with all parties to the transaction without acting in a designated agency capacity. In these situations, neither party is exclusively represented by a designated real estate agent. Buyers want to pay as little as possible, sellers want the most possible. Consider the easy questions; how are appraisal and inspection issues resolved? How can one agent be an advocate for both and fulfill their required fiduciary duties? They can't. Never agree to dual agency.
Both Parties Must Consent:
Georgia law allows real estate brokers to act as dual agents if they first get the written consent of both parties. Consent is REQUIRED, dual agency is not a "surprise". The written consent must contain the following:
- a description of the types of transactions in which the licensee will serve as a dual agent;
- a statement that as a dual agent, the licensee represents two clients whose interests will likely be different or even adverse;
- a statement that the dual agent will disclose all adverse material facts regarding the transaction known to the dual agent to all parties to the transaction except for information that is made confidential by request of another client and that is not allowed or required by law to be disclosed;
- a statement that the licensee will disclose to each client in the transaction the nature of any material relationship the licensee or his or her broker have with other clients in the transaction other than incidental to the transaction;
- a statement that the client does not have to consent to the dual agency; and
- a statement that the client’s consent has been given voluntarily and that the client has read and understood the brokerage engagement agreement; This special consent is required because of the potential for conflicts of interest in dual agency transactions.
New Homes, Open Houses, Sign Calls
Buyers most often walk into trouble in these ways. Agents at new communities are LEGALLY required to represent only the builder at every step of the process. THE BUILDER PAYS A SET COMMISSION, NOTHING IS “DISCOUNTED” OR “REBATED” (kicked back) TO THE BUYER. It is foolish not to use an experienced buyer’s agent for new construction. In this case, unrepresented buyers are just that; the site agent will not play any role for them during the build. Buyers not represented when building a home have no idea what the process is like. Not paying for representation and not having it is foolhardy. Open houses and sign calls are another way buyers can be compromised. Many listing agents long for capturing the full commission and if a buyer doesn’t immediately state they are represented, they may be forced into a dual agency situation. Some buyers know this and expect a discounted price “for not using an agent”; that’s not automatic as the listing contract is between seller and listing agent and any such stipulations would have to be spelled out at the time the listing was taken. Some listing agents stipulate that if the buyer's agent isn't present at the initial showing, any agent later introduced receives a reduced commission. Buyers may be expected to make up the difference for their agent out of pocket.
The Industry & Agents
Dual agency is illegal in eight states; it is legal with consent in Georgia. This shouldn’t be a surprise given that the bar to entry and retention for real estate agents can be cleared by a snake. Have the agent explain how they can effectively represent competing and opposite sides. Have the agent explain how they plan to uphold their fiduciary responsibility to each opposing party. Ahead of these questions, google those fiduciary responsibilities and ask yourself why on earth you would agree to dual agency. And buyers...given that GA is a "buyer beware" state, how motivated will the dual agent be to dig deep on the property they are also representing the seller on?
Treat the purchase or sale of a home like the major financial transaction it is, why compromise dedicated representation? Some agents consider the practice unethical and will not practice dual agency – unfortunately it’s a disappointing very few. Most agents salivate at the thought of “double ending” a transaction; most brokerages do as well as it means a commission double dip for both. Don’t be compromised, it’s up to buyers and sellers to demand more. Nothing changes, even something as blatantly unethical as this, unless the public pushes back.
90% of the work in the real estate industry is done by 10% of true professional agents. Some buyers and sellers feel obligated to use an agent, fail to properly qualify and ask questions of agents and/or just look to find the cheapest agent or one that kicks back money. HGTV and the TV shows are not the real world, when things go wrong in real estate they tend to be expensive and time consuming.
READ READ READ: And now the obvious "don't forgets" - EVERY situation is unique with real estate. Both buyer and seller must clearly understand what role, if any, the brokerage and the agent play. Who is represented, at what level, at what cost, paid by whom...and the thousand "what ifs" that don't pop up until the process begins. VET YOUR AGENT. VERIFY CREDENTIALS AND EXPERIENCE. HAVE THEM READ & EXPLAIN THE BROKERAGE AGREEMENT. ASK QUESTIONS. The person in the mirror is in control.
The Hank Miller Team puts 30+ years of full time sales & appraisal experience to work for you. Act with complete confidence & make sound, decisive real estate decisions. 678-428-8276 and firstname.lastname@example.org
Posted by Hank Miller on