Supreme Court Rules on Real Estate Dual Agency

For the first time in history, homebuyers are deliberately creating dual agency situations as many refuse to work with anyone but the listing salesperson. The thinking is that they may get a better deal working with the listing salesperson when actually they may be creating a possible conflict of interest. How can the listing salesperson negotiate the best deal for you when their fiduciary obligations are to the seller?

In 2016, a surprising trend emerged almost everywhere in the country. When buyers call about a listing that is unavailable or unsuitable for their needs, they have no interest in hearing about other properties – instead agents are constantly hearing the refrain: “We’ll just contact the listing agent directly.” This shift is just another sign that clients have not been educated about the benefits of having a fiduciary relationship with their buyer’s agent.

In Horiike v. Coldwell Banker, the California State Supreme Court ruled that for in-house deals, the agency (Coldwell Banker and its respective salespersons in the transaction) had a fiduciary duty to both the seller and the buyer. This ruling could limit the ability of large firms to do in-house deals, raise transaction costs due to increased litigation, and force agents to disclose “sensitive information about the client’s motivations or the salesperson’s personal beliefs to the other side of the transaction. Sadly, agents divulge this type of information all the time.

Couple this with pocket listings, lax agent attitudes toward dual agency issues, and a recent California Supreme Court decision changing dual agency requirements in that state, and you have a perfect storm that could fundamentally transform how Realtors conduct their businesses. Realtors refer to themselves as agents, but when it comes to agency law, the brokerage is the “agent,” not the individual salesperson.

The best way to avoid agency issues is to ask, “Whom are you advocating for and what are your legal obligations in terms of what you can and cannot disclose?” Most real estate attorneys believe the solution to the dual agency issue is to work with a buyer’s agent exclusively.