Dual agency is the process by which one agent represents both the buyer and the seller in a real estate transaction. This is a practice which is illegal in many states, but is legal here in Texas, so I want to address this practice because I believe that it is a dupe on buyers who believe that their best interests are being represented under the scope of the law. In reality, this is a serious consumer rights issue which has flown under Texas's ethics radar for far too long.
Years before "my time", the standard in real estate representation was that one REALTOR® oversaw the entire transaction, and despite the fact that the REALTOR® handled both sides, they were the
seller's agent. Bear in mind that the term "agency", within the scope of a real estate transaction, holds several implications. When I am acting as someone's "agent", I'm not simply representing them. I become bound to a very strict series of guidelines all of which are designed to ensure that I'm protecting the client's best interests. Generally, all real estate licencees are required to act, in a word, ethically. Real estate agent ethics cover such things as reasonable skill and care, dealing honestly and in good faith, disclosing known defects, etc. However, there are additional, more specific requirements for REALTOR®s who are acting as an "agent" for a client. These cover such duties as loyalty, timely disclosure, seeking expert advice, and not to disclose confidential information. It is this final duty - not to disclose confidential information - that I want to focus on in regards to dual agency.
In the early1990s, it became very clear to consumer rights advocacy groups that there was a significant tilt in favor of sellers in real estate transactions. Not only did they not have representation of their own, but the person guiding them through the sale actually represented the seller. Imagine the implications of this. What if you, the buyer, were to share an important detail with the agent which would give the seller leverage in the sale? By the Law of Real Estate Agency, the agent is actually required to share that information with the seller, and what's worse, thanks to the same law, which, among other things, requires confidentiality, the agent could not do the same for you. In other words, not only is the seller's confidentiality protected, but the buyer's confidential information must actually be disclosed to the seller!
In order to remove this unfair balance, The Law of Real Estate Agency was expanded to include rules for Buyer's Agents to encourage buyers to hire their own represenation, and allow buyers' interests to finally be represented in real estate transactions. Yet despite this sweeping change, several states, including Texas, still allow for dual representation in real estate transactions. While they can only do this with written permission from both the buyer and the seller, the reality is that one of two things is going to happen.
1) In a best-case scenario, the agent will appropriately represent both sides. In order to do so, he/she must remain neutral in order to protect the interests of both parties. The agent becomes a mediator rather than a negotiator.
2) In all liklihood a dual agency would occur when a listing agent is approached by an interested buyer. With permission, the agent could then act dually; however, the agent is also human and represented the seller first. While the expectation is that they should act appropriately, their original loyalties lie with the seller. If the balance were to tip within the transaction, the agent is more likely to favor the seller.
In the best-case scenario, no one's interests are being represented. In the likliest scenario, the seller is once again being favored. This is the exact scenario that consumer advocacy groups fought to eliminate nearly 20 years ago, and yet here in Texas, it's a problem that persists. In fact, Texas law indicates that Buyer's Agents represent the
seller until 1) a Buyer's Agency contract has been signed, or 2) a Purchase and Sale agreement has been signed. These are outdated practices which put local buyers at risk.
It's worth noting that I do not perform dual agency, and I encourage all buyers to educate themselves on this outdated practice and to avoid it. The purchase of your home is too important to be left to someone who may not have your best interest in mind.
If you're interested in speaking with me about North Dallas real estate, I'm available 7 days a week, 8am-8pm. Please don't hesitate to email me at kim@kimkoenig.com or give me a call at (214) 415-9221.