David Ebbert - Real Estate Broker

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Dave Ebbert - Broker

Dual Agent

The Dual Agent occurs when a single agent represents both the seller and the buyer for the same property.  Can the Broker provide the same level of service to both the buyer and seller?  Only if the level of service is redefined to delete the concept of "due no harm".  The State of Oregon, in its infinite wisdom, has chosen to address this possibility by creating the “The Disclosed Limited Agency" (Dual Agent) status.  They retain the Agency concept except pricing discussions becomes a gray area due to the following rule:

 

"An agent acting under a Disclosed Limited Agency agreement has the same duties to the client as when representing only a seller or only a buyer, except that the agent may not, without written permission, disclose any of the following:

 

1. That the seller will accept a lower price or less favorable terms than the listing price or terms;

 

2. That the buyer will pay a greater price or more favorable terms than the offering price or terms; or

 

3. In transactions involving one-to-four residential units only, information regarding the real property transaction including, but not limited to, price, terms, financial qualifications or motivation to buy or sell.

 

No matter whom they represent, an agent must disclose information the agent knows or should know that failure to disclose would constitute fraudulent misrepresentation. Unless agreed to in writing, an agent acting under a Disclosed Limited Agency agreement has no duty to investigate matters that are outside the scope of the agent's expertise."

 

Therefore if the Broker cannot advise the client about pricing, and purchasing real estate is usually all about the best price for the seller and/or buyer, is the Broker really providing the service as expected?  Sorry, but what function does the Broker perform if not advising his client or clients about pricing considerations and obtaining the most advantageous transaction for the client?  The Broker collects a commission while neither the seller nor buyer receives full service.  Dual Agency is not only unfair to clients but also creates unreasonable liability on the Broker.

 

Published Monday, June 16, 2008 8:51 AM by Dave Ebbert - Broker

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Dave said:

Agency Real Estate Law requires agents provide specific services to clients, whether a buyer or seller.  Oregon law lists 10 affirmative duties the agent owes the client:

1.  To exercise reasonable care and diligence;

2.  To deal honestly and in good faith;

3.  To present all written offers, notices and other communications in a timely manner whether or not the seller's property is subject to a contract for sale or the buyer is already a party to a contract to purchase;

4.  To disclose material facts known by the agent and not apparent or readily ascertainable to a party;

5.  To account in a timely manner for money and property received from or on behalf of the client;

6.  To be loyal to their client by not taking action that is adverse or detrimental to the client's interest in a transaction;

7.  To disclose in a timely manner to the client any conflict of interest, existing or contemplated;

8.  To advise the client to seek expert advice on matters related to the transactions that are beyond the agent’s expertise;

9.  To maintain confidential information from or about the client except under subpoena or court order, even after termination of the agency relationship; and

10.When representing a seller, to make a continuous, good faith effort to find a buyer for the property, except that a seller’s agent is not required to seek additional offers to purchase the property while the property is subject to a contract for sale.  When representing a buyer, to make a continuous, good faith effort to find property for the buyer, except that a buyer’s agent is not required to seek additional properties for the buyer while the buyer is subject to a contract for purchase or to show properties for which there is no written agreement to pay compensation to the buyer’s agent.

None of these affirmative duties of an agent may be waived, except #10, which can only be waived by written agreement between client and agent.

A Dual Agent owes these duties to both the buyer and seller. Besides not being able to discuss price issues without a conflict of interest, let me put forth another scenario:

What happens when a family looks at a property where a sex predator is living in the neighborhood and the agent is aware of the fact?  By law that is not a material fact and the seller’s agent could only point it out under penalty of law.  A Dual Agent is in the same situation, as this disclosure would no doubt be considered and adverse action against the seller.  However, Buyer’s Agents would have the obligation to disclose this and other known factors that might influence a decision.

Other situations may preclude the Dual Agent from providing full representation; motivation of buyer or seller, property history, buyer history, external conditions impacting property value, are only some of these.  

Why would an agent accept a Dual Agent position?  Usually, it is for financial consideration, a commission income from both sides of the transaction.  Why would a client accept a Dual Agent?  Commonly the listing agent is the name on the ‘FOR SALE’ sign.  Sometimes it is because of a personal relationship.  Regardless of the reason, the client must be aware they may be receiving less than full disclosure from your Realtor Agent.

June 23, 2008 10:55 AM

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