Before you read too far in this post, let me just say that I am writing from Virginia. Each state handles Dual Agency differently. If you are in a state other than Virginia, I am happy to try to help you find the resources to get clarity on your state guidelines.
You are standing in front of a home in a neighborhood that you really like. There is a sign in front of the house with a phone number. You call the number, you set up a showing time and the listing agent shows you the property. You really (really) like it and you want to make an offer. What happens next can affect the purchase of this home in ways that you might not understand.
There are basically three options now:
- The listing agent becomes a Dual Agent and writes a contract for you.
- The listing agent drafts the contract for you as a 'ministerial act.'
- You contact another REALTOR® and they represent you in this purchase as a Buyer's Agent.
It is important that you understand what each happens in each of these scenarios, because your choice of how to move forward can have a huge impact on your purchase.
Scenario One: The Listing Agent becomes a Dual Agent. In this scenario, both you and the seller will have to sign a disclosure saying that you understand that the agent is representing you both. Another way to think of this is that the agent is not representing either of you. If BOTH of you are the agent's client, they cannot provide any guidance that would hurt their other client. This could affect your negotiation position since you will not (and should not) receive advice on how to structure your deal. There are agents out there who will disagree with me about not practicing Dual Agency, but this is something I won't practice; if I am the Listing Agent, the seller has already hired me, contractually, to represent them. I will not invalidate that contract by taking on a second client for the same transaction. If you opt to go this route, be sure that you understand EXACTLY what the agent will provide for you in terms of support.
Scenario Two: The Listing Agent and Ministerial Acts. The act of drafting a contract does not imply dual agency. As REALTORS®, we are allowed by the Commonwealth of Virginia to draft real estate contracts. That said, when drafting a contract as a Ministerial Act, the REALTOR® will not be helping you craft strategy. This could affect your negotiation position since you (should not be) will not receive advice on how to structure your deal. The REALTOR® will be helping you put your terms into a contract that will be presented to the seller, who is their client. I work with a lot of buyers and I will tell you that they often do not understand how to put together an offer that works for a seller. Their ideas are often self-serving and not realistic. I am not bashing buyers; buyers don't buy new homes very often and, as a result, their experience is limited. I help my buyers understand the process and put together a strategy that helps them win the contract. Conversely, when I perform a Ministerial Act, I am simply taking the buyer's ideas and filling in the blanks. Advice does not come with this act. Someone who opts for this route should be very familiar with the residential (not commercial) home buying process. And remember, even though they are helping you, the REALTOR® represents the seller, so you should be very careful about the information that you disclose.
Scenario Three: Buyer hires their own REALTOR®. By now, I hope that you understand that this is my preferred option.
It is my preferred option even when I am the listing agent and have to pay a Buyer Agent commission. Some of you will think that getting another agent involved is leaving money on the table...yeah, maybe. For me, however, I think this is the way that I can provide the best service to my sellers and have the best outcome with the transaction. It is very hard to carry a transaction from contract to close and not provide advice to your clients. Frankly, I think that clients deserve advice, after all, most don't often buy or sell a house. In my mind, all parties deserve to be represented by a professional who is solely advising them.
Back to our scenario. If you are the person standing in front of a house and want to schedule a showing, instead of calling the listing agent, my recommendation would be to think about who you were planning to use as your Buyer Agent. If you don't have someone in mind, call a friend who has recently bought or sold a house and get their recommendation. Call that agent and set up the showing. If you opt to call the Listing Agent, you may be giving up your right to your own representation; there are agents who will believe that they are the 'procuring cause' (and due the commission) of your interest in the house and will fight against allowing you to hire your own agent after the fact. It is a cleaner option for buyers to not ever get into this position. Just have your own representation. You wouldn't share a lawyer with someone, would you?
With all the new real estate apps out there, it is easy to contact the Listing Agent and request a showing. Before you hit enter and type in your phone number, just be sure you understand what this could mean for your purchase.
