As if buying or selling a house isn’t complicated enough, having to figure out who a real estate agent represents…or if an agent represents anybody at all…has heads spinning. And this will only get worse this spring as we enter the most competitive market since 2005, according the Massachusetts Association of Realtors ®.
With inventory at a critical low and some 40 buyers vying for every one property that hits the market, it is important for buyers and sellers alike to fully understand who represents whom in a real estate transaction and whether that person is really putting the client’s interest first.
According to the Massachusetts Mandatory Real Estate Licensee-Consumer Relationship Disclosure that agents are required to present to a buyer or seller at the first personal meeting, agents owe the consumer “undivided loyalty, reasonable care, disclosure, obedience to lawful instruction, confidentiality and accounting.” Your seller agent commits to negotiate for the highest price and best terms for your home. Your buyer agent, conversely, commits to negotiate for the lowest price and best terms for your purchase.
Then, there is something called Dual Agency which has been outlawed in many states. That’s right – outlawed. Dual agency is still legal in Massachusetts, but only with the written consent of both buyer and seller. The above-mentioned Agency Disclosure states that “a dual agent shall be neutral with regard to any conflicting interest of the seller and buyer. Consequently, a dual agent cannot satisfy fully the duties of loyalty, full disclosure, obedience to lawful instructions…a dual agent does, however, still owe a duty of confidentiality of material information and accounting for funds.” Perhaps a clause should be added that states, “the only party that benefits from dual agency is the real estate licensee because they keep the whole commission while leaving the parties to fend for themselves.”
Dual Agency is best illustrated by my friend Yul Besori who had not enlisted the services of a buyer agent to help him find a new home. Rather he would search for homes online and reach out to the seller agent when he identified one he wanted to tour. He now admits his assumption was that he could get a better deal if he eliminated the buyer agent. He also had a home to sell so figured he could just have the same agent list his home. He recalls having a genius, foolproof plan and it worked.
Unfortunately, because the dual agent never disclosed the house had mold his whole family now suffers from respiratory disease. He is also out $18,000 in mold remediation and reconstruction costs. Besori cites a long list of questionable actions by the dual agent, the most notable being that the agent (again, the one who was originally hired to represent the seller but then agreed to remain neutral) blatantly told him the least amount the seller would accept for the house. He originally didn’t care because he got the house in a competitive situation…but then realized the same agent sold his home for $35,000 below fair market value.
So the way Yul Besori figures it, this agent walked away with the equivalent of two years’ college tuition…and really didn’t need to do a thing because she remained “neutral.”
So how does one avoid dual agency, you ask? The obvious solution is to hire a buyer agent who represents you and only you. You might lose out on a house in a competitive situation because the seller’s agent was putting his or her interests above all others’. But at least you know you aren’t walking into any abyss. A truly ethical seller’s agent would insist, however, that he or she designate another agent in that office to represent you for that transaction. This is called “designated agency” and you can rest assured that you are receiving all the benefits of a buyer agent described above. When you’re talking about a five-, six- or seven-figure investment, this is not a time to roll the dice.
Judy Boyle, Realtor®
Serving Worcester & Southern
Middlesex Counties with
honesty and integrity since 2003