Whose agent are you, anyway?

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Dear Real Estate Adviser,
We just looked at a partially built home we found on the Internet and then contacted the listing agency’s Realtor to show us the house. We want to put out a contract on it as soon as possible, but realize we should probably work with our own Realtor. Do we now have a responsibility to use the woman who showed us the house?
— Sue

Dear Sue,
Assuming you didn’t sign a contract, make an offer on the house to the agent or give her any other reason to believe she was your representative, you are most likely free to find your own agent. I say “most likely” because some agents who spend a considerable amount of time with an otherwise unrepresented potential buyer will sometimes try to use a “procuring cause” argument to get a piece of the commission, saying they brought the buyer all the information needed to make a decision on the property. So, they served as a “cause” of the sale and deserve compensation. But this is relatively rare.

Certainly, it is the job of listing agents — also called selling agents — to handle calls and tours on all the properties they sell, regardless if these requests come from another broker or directly from a potential buyer. But that shouldn’t entitle the listing agent to a commission by mere proximity! However, to be absolutely sure you’re in the clear here, you might try contacting the listing agent again to clarify your position and remind her that while you appreciated her time, you are planning to use your own buyer’s agent in the deal because you need an exclusive advocate in this most important of capital transactions.

By the way, there are several arguments for using a buyer’s agent in your situation and hardly any against it. A dedicated buyer’s agent will be able to objectively perform “comps” based on recent sales of comparable homes and be less inclined to steer you only to listings that involve his or her agency. Such an agent can almost always help you negotiate a better price and is your exclusive representative in other important homebuying matters.

Technically, there is such as thing as a “dual agent” who can represent the buyer and seller. Hypothetically, this person can only legally serve as a transaction facilitator and information provider, not as an actual advocate for either party. While this may seem OK, realize that a person who originally serves as a listing agent for one party is still more apt to favor the person in the deal, human nature being what it is.

Moreover, such a double-dipping agent, in effect, owes only limited duties to both parties, hardly the best way to go about making a major purchase! With the possible exception of so-called “friendly sales” between relatives and other close-knit parties, dual agency is ethically questionable and fraught with potential conflicts of interest. In all 50 states, nondisclosed dual agency is illegal. That is, a real estate broker who acts for the seller and the buyer must receive the informed consent by both parties of this arrangement. In some states, including New York and Texas, any kind of dual agency is illegal.

Your next course of action should be to find yourself a dedicated buyer’s agent who is not affiliated with the listing agent’s brokerage and who primarily represents buyers. And good luck with that unfinished house you like so much. Even though you want to pounce on it quickly, a good buyer’s agent will help you determine just how fast you need to move and whether there are similar homes available.

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