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March 6, 2018 • Stay Connected!
         

QUESTION:  I was at an open house and a buyer asked me to write an offer. I told buyer that I am the listing broker. I also gave buyer the Law of Agency pamphlet before buyer signed the documents. I put on Form 21, line 15 that the Selling broker represents the seller and the Listing broker represents the seller. That seems to be what the Law of Agency says. However, I see in the listing agreement, wording that makes me think I am going to be a dual agent in this situation. The Listing Agreement says, in paragraph 2: "If the Property is sold to a buyer who Listing Broker also represents, Seller consents to Listing Broker and Supervising Broker acting as dual agents." The Agency Law and the Listing Agreement seem to contradict each other.



ANSWER:  The Agency Law and the listing agreement are entirely consistent and broker's completion of the Form 21, Agency Disclosure provision, was correct.
 
To understand this answer, broker must start with a solid knowledge of the Agency Law's creation of agency relationships between brokers and the parties. Recall that in every transaction, the broker involved represents the buyer UNLESS that broker's firm has a written agency agreement with the seller, naming the broker as the seller's agent, in which case broker represents seller, exclusively. The only way to extend that exclusive seller representation to a dual agency relationship is for the seller's exclusive agent to also enter an agency agreement with the buyer. Dual agency exists for the broker handling the transaction ONLY if that broker is named as the seller's agent in a listing agreement and also named as the buyer's agent in a written buyer agency agreement.
 
In this situation, the broker handling the transaction had only one written agency agreement and that written agency agreement was with seller. As a result, broker REPRESENTS only the seller. Broker does not represent buyer and thus, the language in the listing agreement, cited in the question, is not triggered. The mere fact that broker wrote the offer for buyer does not establish agency between buyer and broker and broker, as correctly noted in the Agency Disclosure provision of Form 21, does not represent buyer. In this transaction, broker represents seller exclusively and wrote the buyer's offer for buyer. Buyer is without representation in the transaction.
 
(As a side note, this answer should not be confused with a situation where a managing broker may be a dual agent because two different brokers, each of whom are supervised by managing broker, represent a different party in the same transaction. In that case, the managing broker will be a dual agent, even if there is no written agency agreement between buyer and the firm.)  

 

The Legal Hotline Lawyer does not represent Washington REALTORS or its members. To browse through our database of past Q & A's, visit www.warealtor.org. Attorney Annie Fitzsimmons writes the Legal Hotline Question and Answer of the Week. Please submit questions to legalhotline@warealtor.org . Please tell us your NRDS number when you e-mail the Hotline with your question.



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(updated every Thursday)  Source:  Freddie Mac
 
 March 1, 2018       30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  4.43%  3.90%  3.62%
 Fees & Points  0.5
 0.5
 0.4
 Margin  N/A  N/A  2.75



 February 22, 2018  30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  4.40%  3.85%  3.65%
 Fees & Points  0.5
 0.5
 0.4
 Margin  N/A  N/A  2.75



 February 15, 2018  30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  4.38%  3.84%  3.63%
 Fees & Points  0.6
 0.5
 0.4
 Margin  N/A  N/A  2.75



 February 8, 2018  30-yr FRM  15-Yr FRM  5/1-Yr ARM
 Average Rates  4.32%  3.77%  3.57%
 Fees & Points  0.6
 0.5
 0.4
 Margin  N/A  N/A  2.75




 
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