Agency Relationships In Real Estate
You should discuss the following information with the real estate licensee with whom you may work in order to make informed decisions.
Are you a Customer or a Client ?
When you choose to work with a real estate licensee, he or she may not be “your” agent!
An agent owes certain duties to a client but has different obligations to a customer. You must know whether you are a customer or a client of a licensee in a real estate transaction and that relationship must be established and disclosed prior to beginning to work together.
Who is a Customer?
A customer is a person who seeks to buy or sell real estate, but who does not establish an agency relationship with a licensee
and therefore, is not represented by a licensee as his or her agent. As a customer you cannot expect the licensee to act as your agent or to negotiate on your behalf. A real estate licensee can, however, provide valuable market information and services to assist you as a customer. A licensee is also obligated by law to treat customers honestly, to disclose known material facts about the property and to promptly present all offers and counteroffers. When selling or buying real estate, you may decide you don’t need your own agent. The licensee may be able to provide you as a customer with all the information and assistance you require to successfully complete a transaction. However, if you are a customer, the licensee’s primary loyalty is not with you. It is to his or her client. The agent must convey all known information to his or her client, such as the seller’s urgency to move if he or she represents a buyer/client or a buyer’s willingness to increase an offer if he or she represents a seller/client.
Who is a Client?
A client is a person who establishes an agency relationship with and agrees to be represented by an agent in a real estate transaction.
A seller becomes a client of a real estate company by signing a formal listing agreement with a licensee associated with a company. Prior to any transaction, this agreement must be in writing and must clearly establish the terms of the agreement and the obligations of both the seller and the licensee/company who becomes the agent for the seller.
A buyer becomes a client of a real estate company by signing an exclusive buyer agency agreement with a licensee associated with a company. Prior to any transaction, this agreement must be in writing and must clearly establish the terms of the agreement and the obligations of both the buyer and the licensee/company who becomes the agent for the buyer.
Who is an Agent?
An agent is the licensee who by mutual agreement will act on your direction and represent your interest above all others in a real estate transaction. In South Carolina, once an agency relationship is created, the broker-in-charge of the company is considered to be the agent of the client, and all licensees with the company become subagents of the broker-in-charge representing that same client.
Acting on your behalf, your agent will negotiate for you the best price and terms in a real estate transaction. Your agent owes utmost loyalty to you, the client, and pass on to you any information he or she knows which might influence your decision to buy or sell. You can rely on your agent to preserve confidential information provided by you. You can expect to receive timely accounting of money or property related to and received during your relationship with your agent.
What is a dual agent?
In certain situations, a licensee acts as an agent for and may represent the buyer and the seller in the same transaction provided each has consented in writing prior to the transaction. This is called dual agency since one agent represents both parties and both remain clients of the company. The possibility and consequences of such an occurrence must be explained to you by the licensee.
Working with a dual agent is not the same as having your own exclusive agent! For instance, when representing both a buyer and a seller, the dual agent must not disclose to one party confidential information obtained from the other party. Also, a dual agent may not be the advocate for either party and cannot negotiate for nor advise either as to the price or terms. It is important that you discuss dual agency with the licensee in order to understand the limits of representation which a dual agent can provide. If requested by licensee, you must determine whether or not you would be willing to modify your established agency relationship and give your consent, thereby agreeing to limited representation by your agent.
Do you want to be a customer or a client?
Do you want only to receive information and assistance (customer) or to be represented (client)?
To understand your options, discuss this with the real estate licensee with whom you are working. It is important to you and the licensee that your working relationship with the licensee be established and acknowledged and that you are aware of the services you will be provided. At your discretion, it may be advisable for you obtain legal or other professional advice which you feel necessary to protect your own interest.
This information is from the consumer information brochure presented by the S.C. Department of Labor, Licensing and Regulation Department South Carolina Real Estate Commission.