Representation and Agency are not very well understood by the consumer public…but also not well understood by some salespeople.
When a Salesperson is representing a product, whether it be a suit of clothes or a house, they are acting under Agency and their fiduciary duty belongs to the party paying for their services unless they have a contract that says otherwise. If you walk into my Open House and ask me questions about the property, like “what will they take?”, it is my duty to tell you that “they will take the asking price.”
I’m not trying to be smart or glib, but the seller has signed a contract with me and the Company, to sell the property at a price they have chosen under the listing agreement. My duty to counsel is to the Seller, not the Buyer….
If I enter into a Buyer Representation Agreement with the Buyer then I can offer counsel to the Buyer. I can give information about recent sales in the area, market conditions, my thoughts on the market etc. but only when a relationship has been established in writing between the parties, much as a Listing Agreement sets out the relationship with the Seller and their agent.
There are times, of course, when Multiple Representation occurs. That happens when a property listed with my Company is of interest to a Buyer under contract to our Company.
An open discussion can be held with the exception of two major areas:
- If I know what price the Seller would accept or the Buyer will pay, I cannot share that information….
- If I know the motivation for the Buyer or Seller in Buying and Selling, I cannot share that information…
Those are the two restrictions…and must be adhered to under Representation or Agency.
To go further into detail, here are the different possible forms of agency relationship explained:
1. Seller's Agent
When a real estate company is a “seller's agent,” it must do what is best for the seller of a property. A written contract, called a listing agreement, establishes seller agency. It also explains services the company will provide, establishes a fee arrangement for the Realtor's services and specifies what obligations a seller may have.
A seller's agent must tell the seller anything known about a buyer. For instance, if a seller's agent knows a buyer is willing to offer more for a property, that information must be shared with the seller. Confidences a seller shares with a seller's agent must be kept confidential from potential buyers and others. Although confidential information about the seller cannot be discussed, a buyer working with a seller's agent can expect fair and honest service from the seller's agent and disclosure of pertinent information about the property.
2. Buyer's Agent
A real estate company acting as a "buyer's agent" must do what is best for the buyer. A written contract, called a buyer agency agreement, establishes buyer agency. It also explains services the company will provide, establishes a fee arrangement for the Realtor's services and specifies what obligations a buyer may have. Typically, buyers will be obliged to work exclusively with that company for a period of time. Confidences a buyer shares with the buyer's agent must be kept confidential. Although confidential information about the buyer cannot be disclosed, a seller working with a buyer's agent can expect to be treated fairly and honestly.
3. Dual Agent
Occasionally a real estate company will be the agent of both the buyer and the seller. The buyer and seller must consent to this arrangement in their listing and buyer agency agreements. Under this “dual agency” arrangement, the company must do what is best for both the buyer and the seller. Since the company's loyalty is divided between the buyer and the seller who have conflicting interests, it is absolutely essential that a dual agency relationship be established in a written agency agreement. This agreement specifically describes the rights and duties of everyone involved and any limitations to those rights and duties.
Who's working for you?
It is important that you understand who the Realtor is working for. For example, both the seller and the buyer may have their own agent which means they each have a Realtor who is working for them. Or, some buyers choose to contact the seller's agent directly. Under this arrangement the Realtor is working for the seller, and must do what is best for the seller, but may provide many valuable services to the buyer.
A Realtor working with a buyer may even be a "sub-agent" of the seller. Under sub-agency, both the listing agent and the co-operating agent must do what is best for the seller even though the sub-agent may provide many valuable services to the buyer. If the seller and the buyer have the same agent, this is dual agency and the Realtor is working for both the seller and the buyer.
Code of Ethics
Realtors believe it is important that the people they work with understand their agency relationship. That's why agency disclosure is included in a self-imposed Code of Ethics which is administered by the Real Estate Council of Ontario. The Code requires Realtors to disclose in writing the nature of the services they are providing, and encourages Realtors to obtain written acknowledgement of that disclosure. The Code also requires Realtors to enter into a written agency agreement with any sellers or buyers they are representing.
Realtors are governed by the legal concept of "agency." An agent is legally obligated to look after the best interests of the person he or she is working for. The agent must be loyal to that person. A real estate company may be your agent – if you have clearly established an agency relationship with that Realtor. But often, you may assume such an obligation exists when it does not. Realtors believe it is important that the people they work with understand when an agency relationship exists and when it does not – and understand what it means.