Over the last 20 years the legal relationship that a real estate professional has with a buyer or seller has seen significant changes. Most all of us are familiar with the relationship that exists between the listing broker/agent and the seller; they sign a listing agreement and that broker/agent represents them in a way that is supposed to reflect their best interest. In years past all other brokers/agents that showed properties listed by other brokers to their customers were in fact legally representing the sellers as sub-agents of the listing broker. Needless to say this caused a lot of confusion. Buyers thought that they were represented by the broker/agent showing them homes, when in fact that agent represented the seller. Imagine that, sharing personal information with your agent who was legally obligated to provide it to the listing broker/agent in order to meet the legal requirements of representing the seller’s best interest.
Today in the state of Georgia, the relationship between a broker, their licensed salespeople, and the clients they represent are modeled after the same laws of agency that apply to attorneys and accountants. This means that you should select your real estate professional in much the same way you would an attorney or accountant. You now have a choice in how you want to be represented as a buyer. Additionally Georgia Law requires that the type of representation be determined and reflected in writing prior to providing services. This is generally not the case. More times than not this is left unaddressed until an offer is submitted on a property; and usually is only mentioned casually as an, OH!! BY THEWAY, by the agent. Knowing the various types of brokerage relationships that are available will help you make a decision on how, and by whom you will be represented.
Exclusive Buyer Agency reflects the same type of relationship that Seller Agency provides the seller and their broker; in which case the seller enters into an exclusive listing relationship with the broker. The broker then represents the seller as their client, and their best interest with all possible buyers. Similarly in an Exclusive Buyer Agency the buyer would select the broker/agent that they feel will best represent and promote their interest. They would then enter into a written agreement as provided for by law reflecting a client relationship with the broker. The fiduciary duties of the buyer’s agent include loyalty, full disclosure, confidentiality, and reasonable care in promoting the clients best interest.
Dual Agency is an agency relationship where the broker and or agent are serving both seller and buyer as a client in the same transaction. Although legal in many states, including Georgia, the pitfalls are obvious. The fiduciary duties of the buyer’s agent include loyalty, full disclosure, confidentiality, and reasonable care in promoting the clients best interest.. It is seemingly impossible for one broker/agent to be an advocate for each party’s best interest. When this type of agency exists, it must be disclosed to and agreed to by all parties. The National Association of Realtors strongly advises against Dual Agency.
Designated Agency is an agency relationship that involves one broker (Dual Agency) who then assigns one agent to represent the interest of the buyer and another agent to represent the interest of the seller in the same transaction. The fiduciary duties of the buyer’s agent include loyalty, full disclosure, confidentiality, and reasonable care in promoting the clients best interest. The designating of different agents to represent the individual interest of the buyer and seller by the same broker allows for the broker to handle both sides of the transaction. This is something that is more common when working with a larger brokerage firm. You will want to consider whether this will adequately insure that your interest are being protected and promoted.
Transaction Brokers may also be considered facilitators, in that they are merely serving as facilitators of the transaction. They represent neither party to the transaction and as such are not advocates for either party. This leaves each party to represent their own interest since the transaction broker is prohibited from advising either party to the transaction. Their primary responsibility is in assisting the buyer and seller in arriving at a mutually acceptable agreement. They cannot give advice or counsel that would create a more advantageous agreement for either party. You will want to consider whether this will improve or enhance the value of your purchase.
Customer Election In this form of representation a buyer decides that they do not want to be represented and do not want to be obligated to working with only one broker/agent; but instead wants the freedom to look at properties from any source and with any broker that may be needed. This too requires a written agreement acknowledging that the broker is serving the buyer as a customer. This will also place limits on the counsel and advice the broker is able to provide, and limits their roles to that of treating all parties honestly and fairly, and to the execution of ministerial duties. It is the opinion of this writer that this is how most transactions happen. No discussion of Agency or Representation in advance by brokers, resulting in a cavalier approach to addressing it at the time an offer is prepared for signing, resulting in a Customer being converted to a Client without clear understanding of what is involved.
Be informed, consider the implications and consequences, and then decide. As in each form of representation it is paramount to consider what is important before making a decision on whom, or how you will be represented. For example if you were faced with a serious legal matter how would you decide on the attorney that would represent you? Would it be based on their area of expertise, their success rate, their negotiating skills, or whether they are a friend or family member, or just because they have a license? The answer is obvious: You would want the most qualified, experienced person you could afford. By securing the most qualified person and the appropriate form of representation you will increase the likelihood of achieving your desired outcomes.