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Home Buyers and Home Sellers Whats Wrong with Dual Agency?

Written by Posted On Thursday, 01 March 2018 08:07

Massachusetts as well as some other states across the country all for dual agency.  But, it is a practice that I believe should not be allowed.  In Massachusetts Dual Agency is perfectly legal.  The state condones the practice and allows it.

So What is Dual Agency?

Well we all know what single agency is in real estate.  You have a listing agent that represents the seller and than you have a buyer's agent that represents the buyer. The real estate agent represents one party. 

Dual agency allows one agent to represent both parties in a transaction.  When a real estate agent represents a buyer or a seller, they owe the individual obedience, loyalty, disclosure, confidentiality, accountability and reasonable care.  The clients needs must come before anything else.

whats wrong with Dual Agency

Dual Agency Creates a Conflict

In a single agency situation, where a real estate agent represents the buyer or the seller this is what the Massachusetts Mandatory Licensee-Consumer Relationship Disclosure states:

"the agent owes the buyer or seller undivided loyalty, reasonable care, disclosure, obedience to lawful instruction, confidentiality and accountability, provided, however, that the agent must disclose known material defects in the real estate. The agent must put the buyer's or seller's interests first and negotiate for the best price and terms for their client, the buyer or seller"

The mandatory state disclosure makes it pretty clear what an agent is supposed to do in a single agency situation. 

In a dual agency situation the Massachusetts Mandatory Licensee-Consumer Relationship Disclosure states:

"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 which is required of an exclusive seller or buyer agent. A dual agent does, however, still owe a duty of confidentiality of material information and accounting for funds"

So if you hired an agent as your listing agent or buyer's agent to represent you, you are looking for counsel and advise from that agent.  In a dual agency situation your agent becomes more of a transactional agent rather than a trusted advisor.

If presented with dual agency remember you have the right to decline it.  In most cases I would say it is in the buyer's or seller's best interest to decline dual agency.  If one party declines the agent has to refer one or the other party out to another agent or agency to be represented.

Let me leave you with one last thought that will bring the conflict to light.  Can a lawyer represent both a plaintiff and a defendant in the same case? NO!  So why should a real estate agent be able to represent both a buyer and seller?  In no way can an agent fully perform the duties they are getting paid for for either party.

This article has been written by Kevin Vitali a Massachusetts real estate agent serving Essex and Northern Middlesex Counties in Massachusetts.

 

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