Can a real estate agent represent both buyer and seller?
When buying or selling a home, you are likely to consult a real estate agent or broker. Frequently, however, buyers (and less commonly, sellers) will work with an agent without asking a question: Who does the agent or broker represent?
There are times the agent represents the buyer, sometimes the seller, and sometimes both. The buyer might be under the impression that the agent works for him or her (given that the agent will draft the purchase contract and prepare the sale) when the agent’s primary duty is to represent the seller’s interests.
To make sure you get the best possible deal, it’s important to know exactly for whom a broker or agent is working, both at the outset and when you sign a sales contract.
Who Are Real Estate Agents and Brokers?
Most states require anyone who charges a fee or commission to purchase or sell real estate for another to be licensed as a real estate broker, agent, or salesperson.
Although the terms “agent” and “broker” are often interchanged (there are other variations across the U.S.), real estate brokers are not the same thing as real estate agents. Generally, real estate agents need to work for or with brokers (who have more education and experience), in effect, acting as salesmen.
In most cases, the person who pays the commission is required to be licensed. And you need to ask this person: Who is he or she representing?
To avoid confusion, we’ll use the title “agent” to describe the real estate licensee who receives a commission when s/he sells a home or finds it for a buyer.
Real Estate Agent Types
Who a real estate agent represents very much depends on who hired the agent and who has signed a representation contract with the agent. Real-estate agent roles or relationships fall into one of three categories:
- seller’s or listing agents
- buyer’s agents
- dual agents
Depending on who the client is, a particular agent can assume any of these roles in a transaction. Some agents represent buyers or sellers primarily.
Listing or Seller’s Agent Duties
The listing agent or the seller’s agent is the agent who assists a seller with the sale of their home by signing a listing agreement. The agent and seller sign a listing agreement in most cases where the agent is given exclusive rights to list the property for sale for a specific period of time. When the seller closes the deal, the agent splits the commission with the buyer’s agent, if one is involved in the transaction.
These agents represent the seller alone. The agent has an obligation to make the seller’s best interests a priority when trying to sell the property. In most cases, an agent’s top priority is selling the property for the highest price.
Duties of a Buyer’s Agent
If you said to a real estate agent, “I’m looking to buy a house,” you shouldn’t assume that the agent will act as your agent. The agent can show you houses he or she has under listing agreements. In this case, the agent represents the seller.
The only way that you are certain to have an agent who acts in your best interests is to sign an agreement or contract stating that he/she is your agent as a buyer. Your agent’s job is to find the house that’s right for you, negotiate the lowest possible price for you, and find out anything negative about the houses you visit. The agent is not responsible to the seller; their duty is to get you a good deal on the right property.
You don’t have to pay for this agent. The seller’s agent splits the commission. Some buyers do sign a contract with a buyer’s agent in which they agree to pay for the services (to be absolutely certain of who this agent truly works for).
Dual Agent Duties
A dual agent works for both the buyer and the seller simultaneously.
It may be convenient to have one agent work on a deal, but there are risks involved. Due to the fact that the dual agent works for both parties, no loyalty is clearly owed to either. But with the dual agent making a commission, he has every incentive to see it through, for the chance to claim the full amount (rather than sharing it with the buyer’s agent).
What happens if the parties want different things, which usually happens? For instance, a dual agent might convince the seller to accept less money for the home, believing that the prospective buyer won’t be able to pay the full price and not want to resume marketing until another buyer comes along.
In almost all states, an agent can only represent a buyer or seller with the parties’ complete awareness and approval. Most states have standard real estate forms where agents must state if they are acting as dual agents in a transaction. In most states, if an agent acts as a dual agent without the knowledge and consent of both parties, the agent’s real estate license may be suspended. Most states also have laws or rules regarding the duties of a dual agent.