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Buying a home is a massive step for any individual or couple. Although people continue to be amazed by New York’s high property prices, the market stays extremely competitive through peaks and troths. Due to the intricacies of the marketplace, NY State requires agents to present you with an agency disclosure form upon the first substantive meeting. There are perils of a dual agency that we discuss below.
Why should I care about Dual Agency?Why should I care about Dual Agency?
Because finding the right home for your budget and needs can be a real challenge due to limited inventory, you need every advantage possible. That’s why many buyers choose to work with a buyer’s agent. While there’s a lot that a licensed buyer’s agent can do for you, there’s the dual agency we need to address before covering the benefits.
When you meet a real estate agent, you may like them very much. After all, an agent is a salesperson; some are very likable and good at their job. However, there may be a situation in which your agent is a dual agent.
A dual agency may sound fun and exciting, like something from a James Bond novel. The reality can create confusion. Therefore, it is essential to understand the concept since, in New York City, you may very well run into this situation.
What is a dual agency?What is a dual agency?
Things can get more complicated, however. If the listing agent is the same person that shows you the apartment, this creates a dual agency situation. This agent cannot provide the same fiduciary duties to the seller or buyer as someone representing only one side.
In New York, the agent must explain the existence of a dual agency to both parties and that this means they are acting for both parties. Take care to demonstrate how this affects each party. Additionally, both the buyer and seller must sign an agency disclosure form. The agent also should explain the potential impact of representing both sides. New York State includes both the buyer and seller giving up the right of undivided loyalty, one of the most “fundamental fiduciary duties” that an agent owes, according to the NAR. It requires the agent to act solely in their client’s best interests, even if this is not their self-interest.
Real estate agents work for a broker/company, which may designate a separate agent for the seller and buyer. Each designated agent represents their client’s interest, but, like any case where there is a dual agency, they cannot provide the same fiduciary duty. The designated agent should inform the client they cannot provide undivided loyalty.
Remember that you have a dual agency even if the two agents are from the same brokerage.
A seller’s agentA seller’s agent
You are likely already familiar with a seller’s agent, also called the listing agent. Someone looking to sell their apartment engages an agent in marketing the property. The agent performs services for the seller, advising the price to set and how to best market the property, whether with staging, etc. This person takes pictures/videos, advertises the unit, holds open houses – in short, advertises the property to drum up interest to sell it for the highest price possible and collect the commission.
This agent’s fiduciary duty is to the seller – Including the duty of reasonable care, undivided loyalty, confidentiality, full disclosure, obedience (obey promptly and efficiently to all lawful instructions from the principal), reasonable care and diligence, and duty to the account (account for all money or property belonging to the principal entrusted to the agent). The National Association of Realtors (NAR) spells these out. The concept is straightforward, and there should be no confusion. If you are a buyer, when you are dealing with a seller’s agent, you should not expect them to protect your interest.
A buyer’s agentA buyer’s agent
As the name suggests, an agent is brought on by the purchaser and represents their interests. The buyer’s agent; negotiates the price on behalf of their client and other terms, such as the inclusion of furnishings. This agent owes the fiduciary duties we previously mentioned to their client, the buyer.
There are specific duties a buyer’s agent should perform when dealing with the seller. These include exercising reasonable skill and care, dealing honestly, fairly, and in good faith, disclose all facts that “materially” affect the buyer’s ability/willingness to perform in the contract to acquire the property.
An exclusive buyer’s agent goes even further. The National Association of Exclusive Buyer Agents (NAEBA) does not take any listings or represent sellers. Members pledge to follow the NAEBA Code of Ethics, which mirrors the fiduciary duties. The agent owes their duty of loyalty unconditionally to the buyer. You can feel confident sharing information since a buyer’s agent can only use it for your benefit.
Broker’s agentsBroker’s agents
A buyer and seller do not have direct contact with a broker’s agent—this person is hired by either the seller or the buyer’s agent for assistance. The broker’s agent, who comes from outside the respective agent’s company, helps the seller’s or buyer’s agent find a property to sell or buy, respectively.
The downside to using a dual agentThe downside to using a dual agent
Why is this a problem? The New York State Office of General Counsel explains that “dual agency arises when a real estate broker or salesperson represents adverse parties (e.g., a buyer and seller) in the same transaction.” As the Office of General Counsel also explains, dual agency means a purchaser is “giving up their right to the agent’s undivided loyalty.” Because dual agency eliminates all of the benefits of working with an exclusive buyer’s agent, it’s a situation you should avoid.
How standard is the issue of dual agency? It’s familiar enough that the New York State Office of General Counsel continues to warn buyers about its problems. One reason it remains an issue is there are plenty of scenarios where it can subtly arise. While many consumers assume that an agent with a New York City real estate license and established track record will always act as an exclusive agent, that’s not the case.
The agent is primarily serving two clients, which many believe is an impossible task. The buyer and seller cannot confidently share information since the agent owes neither a duty of loyalty.
Disadvantages for homebuyersDisadvantages for homebuyers
There could be distinct disadvantages for the buyer. The dual agent has an incentive to close the deal. After all, they are paid double the commission, so the agent may downplay specific facts that could have given you pause. Regarding the price, the dual agent may defend the list price. Remember, the agent helped the seller determine this price and believes it is close to the fair market price. By contrast, an exclusive buyer’s agent advises on the suitable apartment and the amount to pay based on comparative market analysis.
Dual Agency ExampleDual Agency Example
An agent has a listing and wishes to show it to a prospective buyer that they also represent. The apartment is listed for $1 million; the agent cannot adequately advise the buyer or seller since they serve both sides. The buyer cannot feel confident they are receiving the proper advice; on the price to offer, and the seller cannot feel good that they are obtaining the best price. Of course, there are other matters besides price, and neither can feel right about the advice on these issues. Remember, there is no duty of loyalty, which requires the agent to put the client’s interest ahead of their own.
IllegalityIllegality
We have described the disservice done to buyers and sellers with everything done legally. There may be unscrupulous agents that do not handle things above board. For instance, the agent may play favorites, choosing to favor the buyer or seller. Worse, the agent could pick sides and personally benefit from the situation, depending on the day.
Is it Worth Finding a Buyer’s Agent?Is it Worth Finding a Buyer’s Agent?
Although it may require extra homework, buying a home in New York is a huge decision. Since this decision will continue to impact your daily life, the last thing you want is to get dragged down the wrong path.
Not only will an exclusive buyer’s agent protect your best interests, but they’ll also make the entire buying process much more manageable. Because this agent is committed to your best interests, they won’t waste your time on properties that completely miss the mark regarding your budget or needs.
Instead, they will do things like find properties, compare them, assess their real value, and then only present the most compelling choices to you. Another area where an actual buyer’s agent brings a lot of importance is when the time comes to negotiate. Working with an agent you know you can trust means you won’t have to live with a constant cloud of stress.
In addition to everything else, a buyer’s agent is there when you need them. Whether a pressing matter or question needs to be answered, count on clear communication that will keep you informed at all times.
Final thoughtsFinal thoughts
You know the perils when there is a dual agency. Although it may be challenging to avoid in New York City, there are several well-established brokerages; you do not have to enter into the arrangement. You can use an exclusive buyer’s agent; they can only use any information you tell them to help you.