Buyer-Seller Who Represents Whom?

Under Washington Law, there is only one (1) ONE individual, out of the thousands and thousands of licensed agents, who represents the seller.

Every single other agent, of the other skazillion agents in the State, represents the buyer of that house when discussing that house with a consumer. Even if that discussion is with the seller, the agent who is talking to the seller is doing so as a representative of a buyer, if he is not THE one and only listing agent. (Forget Designated Brokers and Branch Managers for a minute.)

I represent buyers 50% to 70% of the time. But when I am the Listing Agent, my duty is clear. When I am entering data in the mls, I must have my thinking cap on and enter that data to the seller’s best advantage, within the rules, of which there are many.

Washington State is one of the only States in the Country with this legal setup that limits the seller’s representation to one single, individual.

So far you have been telling me that having all of the skazillion agents in the State representing the Buyer isn’t good enough for you. You want the one and only lone person charged with representing the seller in a fiduciary capacity to enter the data “in the best interests of the buyer”.

Don’t you think that’s just a little “off”? Can’t the seller have ONE person who does things in HIS best interest? Just ONE please? That person happens to be the person who enters the data in the mls. If you can convince most of these, who don’t know any better, listing agents to do that to the buyer vs. seller’s advantage…well the pendulum will have swung. Bad enough we’re down to one person who represents the seller out of thousands and thousands of agents. Now you want that guy too.

I’m cleaning my house and my office. I think I’m gonna need that Big Red Dog. Giles, you really got my dander up. What you accused me of is tantamount to slander. Trust me. There is not ONE agent in the ENTIRE COUNTRY who understands FIDICIARY DUTIES better than I do. And my fiduciary duty when entering mls data is to the seller. My fiduciary duty when representing the buyer is to understand that the guy who entered the data represents the seller and not the buyer , and I need to do my “due diligence” and not rely on that in any way, shape or form.

I have a counter offer coming in…you guys chew on that for awhile.

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ARDELL is a Managing Broker with Better Properties METRO King County. ARDELL was named one of the Most Influential Real Estate Bloggers in the U.S. by Inman News and has 33+ years experience in Real Estate up and down both Coasts, representing both buyers and sellers of homes in Seattle and on The Eastside. email: cell: 206-910-1000

44 thoughts on “Buyer-Seller Who Represents Whom?

  1. Ardell,

    You’ve definitely given us some good stuff to think about… In particular you’ve got me thinking about how the MLS is really just a marketing tool for sellers.

    With that said, don’t start getting too hung up on slander issues… You’re doing a wonderful job of articulating a very interesting position and by writing articles in the blogosphere you definitely open yourself up to comments from people who are going to find weaknesses in everything you write.

    Back to the idea of the MLS being a marketing tool for sellers… My view is that a lot of people think of it as something much more valuable than just a marketing tool. After all, this is the main tool by which people find what is often the largest investment they will make.

    But here is a quick thought… If the MLS is just a marketing tool for sellers, then it seems quite obvious that there is a market for a similar tool for buyers… What would this tool look like? Are real estate agents going to be involved in creating this tool?

  2. Ardell,

    It looks like Dustin is stepping in to hint that I should behave 🙂

    I really have enjoyed your comments and thoughts in your recent posts.

    I also think that Robbie of Caffeinated Software and my comments have gotten jumbled during those last couple of posts. I Never meant to suggest that you don’t understand your fiduciary relationship to your seller when entering in MLS data. I could not agree with you more about your views on this subject. Let me repeat this… I could not agree with you more about your views of data entry when representing a seller.

    hahaha now I’m sure Robbie will disagree since he seems disgruntled lately with the accuracy of MLS data as a geocoder. hehe…

    Ardell, I think Dustin will agree with me that i have just been on a rant about this MLS debate, and my comments have just been in good fun… Please don’t take me to seriously, as I probably don’t deserve that much credit 🙂

    What I am serious about in this debate though, is the way MLS boards and their controlling brokers don’t want to share their listing agents data. Leaving out that the guest bedroom has blood red carpet with holes in it is not my beef.

    It’s the lack of sharing.

    I hope this has clarified my main point as well as dispelled some tension. Please keep up the good work Ardell!

  3. Giles comment:

    But heres the kicker Ardell….
    Article 1 of the NAR’s ethics code requires that: “When representing a buyer, seller, landlord, tenant, or other client as a broker, REALTORS pledge themselves to protect and promote the interests of their client.

  4. Here’s the part that set me off Giles:

    “I want to provide watered down data to the public and keep my listing agents data away from everyone by my buyers agents here at my brokerage…(so the brokerage can get their cut off of the buyers agents) is simply against not only state law…but against…”

    Where the heck did that come from? A listing agent provides information that will appear in the mls (and now on the internet) that represents his seller client well. That means you “Accuentuate the positive and de-emphasize the negative and latch on to the affirmative and don’t mess with mister in between”. That means we do not fill in non-required fields if we deem it is not in the seller’s best interest to complete that field.

    You call that “watered down”. We call that representing the seller well.

  5. Isn’t the seller best served by being straight up? Are you saying that if the square footage is negative, you would want to de-emphasize it by omitting it? Or the zip code?

    I don’t even see why it’s in the broker’s interest to “water down” the data. Isn’t information appealing to sellers? If it’s a tiny house and they want a big house, does it really help to “de-emphasize the negative.”

    If I were a buyer and I felt like the seller were omitting information I would not have much good faith to lube the transaction down stream. Omitting negative information is very risky to the ultimate interests of the client.

    Don’t misread, this isn’t an ethics claim. If you were selling a car, i would not expect you to say “LOOK THE TIRES ARE BALD.” All I’m saying is that if you say, “You know, the tires probably have another 1,000 miles…we’ve factored that into the price,” you will have earned substantially more credibility that will serve your client later in the transaction.

    None of the percieved negatives on the MLS are deal breakers. And the more significant they are, the sketchier it is to omit them. Agents/brokers should welcome open information.

  6. Why would you not see the internet as an advertising tool? Aren’t buyers using it to not only choose properties to see, but also to eliminate, eliminate, eliminate?

    Doesn’t this reward the agent who puts 2,500 square feet as the square footage, when we as agents click the tax record button and see 1,100 on the main floor 800 on the second floor and the rest the garage and storage room in the basement? The honest agent who puts 1,900 suffers. The one who puts 2,500 gets you to come and see for yourself.

    Once you choose not to even go to see the one that says 1,900 based on the internet, the honest seller and agent lose.

    The mls has clearly become an advertising tool, now that everyone has “hacked” into our internal system of communicating broker to broker. That dramatically changes the scene and we must all become much better photographers 🙂 and learn how to present the informaton much differently than we have in the past. And yes, change our rules of what we enter and what we do not.

    The first thing we changed when came out was using anything at all about the listing agent and phone number in the remarks section. That is now a fineable offense of all mls systems.

    Did you really think that we would stand still and stay the same as life around us changed? You change your rules and we change ours.

  7. Ok ok… i need to go back again and clarify my main point…

    When I referred to watered down data, I wasn’t referring to the accuracy of it… I am referring to the rules here in Georgia to not display a good majority of the data to the public.

    So when i say watered down that is what i am referring to … not the square footage…or omissions in data fields that aren’t required.

    Sorry for the confusion.

    Can anyone up in Seattle show MLS data with the listing agent name and contact info to the public with no signing up? Here in GA and in many other MLS areas this is a major no no.

  8. What type of data is restricted Giles? What are they no longer choosing to “display” to the public? Maybe we can find some good, or bad, reasons there.

    “Showing the listing agent” went out when Realtor. com came in….many moons ago. Reason being that the Laws in each state were changed to support buyers having their own separate buyer agent representative who is not the listing agent. So any info on the internet pushing the buyer toward the seller’s agent has been nixed everywhere. Listing Company is OK here, but not the agent, except the personally paid for advertisements of the listing agent.

    In States like Washington, the Buyer Agent is any agent except the actual listing agent. Do you have Designated Agency yet in GA? Florida went to Transaction Brokerage instead of Dual Agency back in 1997 or so, but that didn’t work out. Most states, 33 or so at last count, moved to Designated Agency.

    Here in Washington, we are one of the only states that provides buyers with full, fiduciary representation at first contact. But the internet and mls hackers are pushing buyers back to the seller’s agent, from what I have seen in personal experience. Not a good thing for the buyers, though so far they are not “getting it”.

  9. Joe,

    Who is “the client” you are referring to? We do not have a myopic view, we have a changing view. First time in history that what we put in the mls is being used for advertising purposes on a large scale.

    Do you criticize those who at least take the time to think about the advantages and disadvantages and don’t simply follow along like lemmings? Should we presume, without any thought whatsoever, that what the buyer wants is also what is best for the seller without thinking? Don’t think! Just follow along and shut up?

  10. Giles, my site is a free, no frills, no sign up search tool. I think if you go there it will answer your IDX question re WA. No bottom feeders, no email capture system. I also didn’t spend a lot of money on it, so it’s not fancy. But it’s a free and fast, look and leave site.

    Go there and see what shows. I think it is the listing company (not agent) and phone number.

  11. Ardell,

    Your site looks great. it is very easy to use and displays the info very clearly. My question is what if i am a buyer who fully understands that the Listing agent represents Only the seller. And i still feel confident to go it alone. How can they call on this listing to ask if it is still availible when the listing agents number isn’t shown. They have to call you?

    This is where we differ in opinions.

    You are saying that your MLS board has put this rule in to “protect” buyers and my argument is that it is put in place to “protect” the brokers buyers agents.

    Now I will be the first one to say that people need buyers agents but for their value add not because they know the listing agents contact info.

    As for the other points of this debate that you guys are talking about… I just don’t know enough about the subject to really even put anything else out there.

  12. Site updates every 15 minutes. Unless it sold within 15 mintues, it’s active if it says active and STI if it says STI. The site does an mls sweep every 15 minutes.

    The phone number is the office number, not the agent number. In WA, only the individual agent represents the seller. We are soon to be Broker Only Licensure and are currently Designated Agency. So ONLY the listing agent his/herself represents the seller. Broker is outside of the picture as the one and only Dual Agent. All other agents who pick up the phone at an office are Buyer Agents.

    BTW it is virtually impossible to find Georgia’s license law LOL so I can’t tell what you are. Seems to be a big secret.

    As to my site, the mls recommended person keeps it in line with mls rules and trends. I don’t “manipulate” it in any way, shape of form as to the search function. Whatever shows there is what the powers that be rule should be shown there, as that changes from time to time.

    The person who hosts my site has a download agreement with mls and keeps it in compliance with rules as they change. I am using it as a pointer site for three domains at the moment, but it will spin off into three separate sites sometime this year.

    Most buyer agents don’t add value, Giles. That is not the point. The point is to not be dealing with the seller’s agent. There is only one of them in the room and thousands of others to choose from. You only have to know to avoid one guy/gal here in WA. I have buyers call me direct on my listing and insist on using me to buy the property. It doesn’t make me happy when they do that, because it is against the protections put in place for them.

    Of course they can choose that and have. But it is not the best scenario for anyone involved. They do it to save money, I know. But they don’t get what they think they are getting. They may not even be saving money that way. But it’s hard to talk to someone who thinks they already know more than you 🙂 So hey, in the end, sometimes I have to let them do what they want whether it helps them or not.

  13. Lemmings, right.

    I have a different view of advantages. “Honest agents” don’t suffer.

    Being a straight shooter builds trust with the other agent and their clients. A straight shooter that doesn’t twist, spin and bend truth which builds capital for stretches in the transactions where REAL disagreements exist…people know where you’re coming from and then trust you not to nickel-and-dime them. They take your concerns seriously.

    Your whole narrative since you’ve begun posting on RCREG has been how you can do things cut rate. Now “honest agents suffer.” Why would I hire you if I was shopping for agent? If you value “taking the money and running” shouldn’t I be concerned that you will do that with me?


    The good agent recognizes the inevitability of open information flows. They are finding ways to incorporate this free flow in their business model, not defending an outdated paradigm of secrecy.:)

    (The opposite of lemmings imho:)


  14. Joe, what kind of info are you talking about? Putting in the name of the elementary school is often prohibited by mls’s from time to time when districts are re-organizing. It is not dishonest to put nothing there, in fact, sometimes quite the opposite. The buyer agent should check that info if it is important to the buyer and not rely on the mls, as you likely know.

    Seems like you are just ticked off that I am talking about how buyers can negotiate the buyer agent fee which is a no-no in this business. You are an agent, is that correct? Or maybe you are ticked off about sellers negotiating fees.

    I don’t believe in the word discount and cut-rate, nor have I said that. What I am saying is that there is no set fee and all commissions are negotiable. You seem to have a problem with that. I don’t think a commission should ever be $75,000 on a residential sale,especially a quick one, no matter what the sale price. You have a problem with that?

    What is your problem, Joe? If I don’t put a pictue of an open toilet on the mls, am I holding something back just because the next guy chooses to “disclose” the dirty toilet bowl.

    Get specific if you are going to get nasty. Exactly what is your beef?

  15. On January 16 Joe said: “The best agents won’t cut their commissions and they shouldn’t.”

    Don’t bother answering Joe. I’ve got your number.

    What exactly are you cutting from Joe? There is no pre-ordained standard fee in this industry. In Manhattan Beach 5% was common, in Orland FL 7% was common. There is no pre-ordained number to “discount”.

    But don’t bother answering…I get where you are coming from.

  16. I have been reading the posts with some interest and decided to clarify something. The use of the term “fiduciary duty” in the state of Washington as it relates to real estate brokers is no longer correct. it went away with the adoption of the Real Estate Brokerage Relationship Act (RCW 18.86). I happened to help draft that law when I was retained General Counsel to the Wash. Assn of Realtors.

    Brokers have statutory duties owing to both seller and buyer. They have specific and limited agency (not fiduciary) duties to the party they represent and general duties (e.g. must be honest) to the other party (all this presuming no dual agency which is a whole other discussion).

    That said, there is nothing legally wrong with a Listing Agent completing a listing input form with the required information and leaving the rest of the information blank. Fluffing the information to better present the property to the general public is more of an issue because such embellishments could be deemed to be “dishonest” and a violation of the general duties.

  17. Thanks Russ.

    Seems like it’s semantics to some extent, as duties of a Buyer’s Agent include loyalty and confidentiality, etc. The duties of a Buyer Agent appear to be the same without the “word” fiduciary used. What duties are left out? Or is it just the word “fiduciary” that was removed? Looks like the duties to the buyer are the same except the agent is not required to remove their “personal” interest, as they would in a fiduciary relationship. I agree that’s a tough call and glad that is not a requirement 🙂

    If a buyer wants to represent themselves and only have the agent “write the offer” for a flat fee, how would the reduction of duties match up with the licensees requirements under the law?

    Can a buyer negotiate for less than the law “requires” to save money? The law says the agent “represents” the buyer unless that agent is the listing agent. How does the buyer “trade down” to save money?

    Thanks for the backup that not filling in the school info is not “dishonest” by most people’s standards.

  18. Ardell,
    Tone is tough online. Apologies if you are offended. It seems to me that Dustin and co. are trying to figure out how to adapt real estate to the internet age. I assume you are doing the same. That’s the conversation I’m interested in. Figuring out the relationship between free information (searching across open databases) and the value that agents bring to the table is an open question.

    The role of “agent” that you are describing is problematic. In #6 you imply that its in the sellers interest to exagerate data entered.

    Doesn’t this reward the agent who puts 2,500 square feet as the square footage, when we as agents click the tax record button and see 1,100 on the main floor 800 on the second floor and the rest the garage and storage room in the basement? The honest agent who puts 1,900 suffers. The one who puts 2,500 gets you to come and see for yourself.

    In #10 you further justify taking this advantage.

    Do you criticize those who at least take the time to think about the advantages and disadvantages and don’t simply follow along like lemmings? Should we presume, without any thought whatsoever, that what the buyer wants is also what is best for the seller without thinking? Don’t think! Just follow along and shut up?

    I certainly don’t criticize marketing to the strengths of the property. Deliberate deception is a problem. (Dirty toilet bowls OK. Bald tires OK. But inflated square footage???) I am not following the “fiduciary” thread, but this difference is significant.

    (And we’ll just ignore my contention for now that better information actually helps the seller.)

    Thriving in the internet age means that agents should build their systems to accentuate their value. EARN their value. Shortcuts like exagerated marketing and other practices that erode trust may help sell one property, but will hurt in the long run. (As always, imo.)

    That’s it for me.

  19. I have to agree with Joe,

    This post has gotten a bit hostile. We have also crossed over so many discussion boundaries that it is hard to figure out who’s arguing for what.

    Joe simply wants to point out that putting false or exaggerated info into the MLS is wrong. I agree 100%… no exceptions.

    Like Joe, I also for the record think that better information ultimately helps the seller. If the property has problems that are hidden they will usually come back to haunt you later with a failed closing. Then angry sellers will blame you and you will risk losing the listing.

    Moving on to my real question:

    As for the whole fiduciary relationship and WA law (or any state law) here’s my Question:

    We all understand the basic relationships between buyers agency and the listing agents. We also understand the grey area when it comes to entering certain data fields in MLS. The debate it seems boils down to the relationship the Broker has in terms of the listing agents duty to his or her seller.

    The Brokers are making decisions not to share info, or to only share it in a certain ways. Can anyone explain further how this activity relates to the listing agents duty to the seller under state law?

    It seems to me that Brokers are making decisions that greatly effect their agents relationships with sellers. If explained fully to sellers during their agents listing presentations, I think it would make them think twice about signing a listing agreement with that agent.

    What are state laws in regards to this? What does NAR ethics codes say about this?

    Also are there any laws that require agents to discuss the limits being put on the marketing of their property by the brokers and MLS boards that the agents belong to?

    Thanks guys!

  20. Maybe they should open up the MLS to comments ala ebay.

    If you mislead in any way and people can give feedback. you wouldn’t even bother looking at a listing by an agent w/ a lot of bad feedback.

    As long as there is a middleman and information hoarding (or the ability to even hoard it) then you’re going to get this discrepency. I’m all for more info and free info…and it’s happening. it’s happening fast too. multiple sources of information, verified info and data, past data, we’ll get there, just not for awhile. Eventually, most of it probably wont come from the listing agent anyway. I’m w/ Joe too, I think full and honest disclosure helps a seller. But in the meantime enjoy the battle.

  21. For those who do not live in the Seattle area, I respectfully suggest that you are not “getting this”. It is not at all about honesty vs. dishonesty or hoarding info vs. disclosure, not in Seattle anyway.

    Just looked at two houses in Maple Leaf. Both say 1,500 square feet on what you can see on websites available to you. One is 490 square feet on the main level and the other is double that on the main level. One includes the garage because someone added up all of the “as built” numbers and another includes some finished squre feet down there with the car fumes.

    Seattle’s housing has issues in that way. Now you take two brand new structures in the same new housing development in Monroe, or two condos, and these issues don’t come into play. But the average homes in Ballard, Green Lake, etc…are not as cut and dry as you presume and total square footage is a bit more complex.

    Again, it is about how different people can view and report square footage, and not about honesty and dishonesty or to disclose or not to disclose. You guys went off on a tangent that doesn’t fit the local scene in Seattle. When looking at the sellers competition, I have to take into consideration how that competition is reporting the square footage. If they are reporting more than they should be, as many are, I need to cover that in my remarks available to be viewed, on the websites.

    I wish it were as simple as everyone seems to want it to be. Clearly that would make my job a lot easier. But I don’t simply hit an enter button after throwing some data onto a screen. I have to view the competition and position the seller well accordingly and honestly.

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