DO YOU REALLY WANT DUAL AGENCY??

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Information below is a summary by Robert Dickerson of Dual Agency considerations.  It is here as information only, and not as any legal advice.  Robert Dickerson is a licensed real estate broker and is not able or qualified to give legal advice.

An independent website discussing the same matters is HomebuyersBeware.com.  You can visit that website by clicking the name.  Hope it helps.

DUAL AGENCY  simply means that you have the same agent acting for both the buyer and the seller.  This may not be a good idea whether you are the buyer or the seller. 

DUAL AGENCY occurs when the agent listing the property for sale also brings to the transaction the party making an offer on that property.  The agent in this case has a real conflict of interest.  Preparing the offer, buyers often rely on the agent for recommendations as to offering price and terms.  Offering price usually is lower than the buyer is willing to go to actually purchase the property, but how can a dual agent recommend an offering price lower than the list price when the agent is also the listing agent?? The answer is he cannot ethically suggest a lower than listing value for the offer. How can the agent recommend  inspection contingencies, recommend who pays escrow, title, inspection, home warranty or other fees.  How can the agent recommend how long you allow the seller to consider the offer before it becomes void??  Dual agency is really only practical when both buyer and seller have a high degree of expertise in the field of real estate.  Nonetheless, the law allows dual agency to occur.  Dual agency benefits the dual agent by (usually) virtually doubling his share of the commission, so there is strong temptation to become a dual agent.  THE AUTHOR OF THIS WEBSITE WHILE NOT A QUALIFIED LEGAL ADVISOR, NONETHELESS STRONGLY RECOMMENDS THAT NEITHER BUYER OR SELLER CONSIDER ALLOWING DUAL AGENCY IN ANY TRANSACTION.

What are the Alternatives?

THE LAW Nevada Revised Statutes: Chapter 645, paragraph NRS645.252 contains the legal requirements for allowance of dual agency. Sub-Paragraph 1.d states the following, where this writer has added the bold italics and left out some items replaced by ....  :

NRS 645.252 Duties of licensee acting as agent in real estate transaction. A licensee  who acts as an agent in a real estate transaction:

1. Shall disclose to each party to the real estate transaction as soon as is practicable:

    (a).....

    (b)....

    (c).....

    (d) Except as otherwise provided in NRS 645.23,

        (1) A description of the real estate transaction.

        (2) A statement that the licensee is acting for two or more parties to the transaction who have adverse interests and that in acting for these parties, the licensee has a conflict of interest.

        (3).....

        (4)A statement that a party is not required to consent to the licensee acting on his behalf.

        (5)A statement that a party is giving his consent without coercion and understands the terms of the consent given.

 

ALTERNATIVES 

There are several alternatives to this dilemma

    1. In the case where you already know what property you are interested in (from a drive-by, advert, word of mouth, etc.), find a different salesperson or even a different real estate brokerage to show you the property and prepare your offer.  This is all well and good, but perhaps you will miss seeing some of the strong points of the property that are known only to the listing agent.  However, you might expect that the showing agent will find those points out from the listing agent before preparing an offer ( the powerful question "Is there anything my client  and I should know about this property before we prepare an offer? " will help immensely ).  If your agent does not ask this question, you should direct the agent to do so.

    2. View the property with the listing agent, but have the listing agent's broker identify a different salesperson to handle your end of the transaction before you make an offer. In this case it is likely that the listing agent will still receive an enhanced commission.  Also, it is only fair that you let your initial agent show you his/her listings that meet your criteria, since that is what the agent signed up to do when the listing was taken.  The  Nevada law relative to the "separate parties assignment" is given at the bottom of this paragraph. 

    3. Obtain an independent advisor in addition to the listing agent to advise you during preparation and/or before signing an offer. This may likely cost you additional monies and/or it may delay preparation of your offer, risking loss of the property  to some other buyer.

 

 

ADDITIONAL INFORMATION

 

NRS 645.253 Licensees affiliated with same brokerage: Additional duties when assigned to separate parties to real estate transaction.  If a real estate broker assigns different licensees affiliated with his brokerage to represent a client in a real estate transaction, the licensees are not required to obtain the written consent pursuant to paragraph (d) of subsection 1 of NRS 645.252. Each licensee shall not disclose, except to the real estate broker, confidential information relating to a client in violation of NRS 645.254.