Buyer Beware – Seller/Seller Contracts

[photopress:seller_seller.jpg,full,alignright]Who represents you, the seller?  Who represents you, the buyer?  Does anyone represent you at all?

Because of all the rhetoric regarding “the evils of Dual Agency”, many buyer consumers are not represented at all in the purchase of a home.  How being represented “in part” became worse than being represented “not at all”, I’m not sure.

This is particularly sad in the State of Washington, as we are the ONLY State to the best of my knowledge, that affords buyer consumers full and equal representation to that of the seller, as the default of our laws.  To see the State trying to insure full representation for all buyers, and then see common practice and other forces flipping that to Zero, Zilch, NONE and No Representation, is clearly a soapbox of mine.

That is not to say that a buyer cannot choose to represent himself, in whole or in part, and possibly reap some monetary benefits when doing so.  As long as that buyer consumer undertands the responsibilities he is taking upon himself, and clearly understands that they are not being represented by anyone except themselves.

Caveat Emptor does not exist in real estate in the State of Washington, unless the buyer CHOOSES it.


Many consumers erroneously get the message that they are “represented”, at least in part, by seeing the same Company and Agent’s name and information on both sides of the signature portions at the bottom. This is NOT the case.

Who represents whom is noted in item #15 “Agency Disclosure”.  If SELLER is checked BOTH times, the agent on both sides at the bottom represents the SELLER at ALL times and the buyer never, leaving the buyer totally unrepresented in the real estate transaction.  Again, nothing wrong with this IF the buyer CHOOSES it.  But all too often the buyer sees an agent name and a company name underneath where they are signing, and erroneously comes to the visual conclusion that they are represented by the agent whose name and contact info appear under their signature.

If line 15. is checked SELLER where it indicates “selling licensee represents”, then the agent whose name appears twice, represents the SELLER with every word spoken to you, and every time he or she is “assisting” you with your duties under the sales contract.

When you ask how much the Earnest Money is…the answer will be the Seller’s best answer.  When you ask any question regarding the contract blanks or any question regarding how to proceed to fill out the contract and proceed to closing, the answer will be the BEST answer from the standpoint of the SELLER and not you, the buyer.  As long as you understand this, there is nothing wrong with SELLER/SELLER contracts.

This blog post is to help insure that buyer consumers look in the correct place when trying to determine whether or not they are represented, and where to get advices regarding the purchase of their home.  Single Agency protects the agent better, but leaves someone high and dry.  That’s OK, as long as the buyer knows not to put out their hand for a step down or ask for a drink of water from…the agent for the SELLER.

I would say this works in reverse for a For Sale By Owner, except, as you can readily see, the NWMLS contract provides no check block for the seller to be totally unrepresented.  The contract would have to be modified, with the permission of NWMLS, to use this standard form for a property not listed in the NWMLS by a member of the NWMLS. 

This is a public service announcement 🙂

This entry was posted in General and tagged , , by ARDELL. Bookmark the permalink.


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

112 thoughts on “Buyer Beware – Seller/Seller Contracts

  1. We have similar laws on agency, however we are much more aggressive on disclosure. We MUST have either a limited agency, which allows for a neutral position. Either the buyer or seller listing agreement must have the language that allows for “In the event

  2. Hi Ardell,

    Informative, interesting post. Thank you. I have a question (for Ardell or any reader): How is a real estate agent required to disclose this information to a buyer or seller?

    For example, are agents required to just simply hand the form to a client for his or her signature? Or are agents required to go over the form, line by line, and explain boxes that are checked?

    I’m not talking about what one agent does v. another. I don’t want to read a bunch of self-promoting agent talk, like “Well I do this, and I do that and I always do this, and I always do that.” Please, spare me the self promotion disguised as a comment.

    All I’m asking here is what the law requires of agents: the minimum standard.


  3. Pingback: Voting for this week’s People’s Choice Award is open | BloodhoundBlog: Real estate marketing and technology blog | Realtors and real estate, mortgages, lending, investments

  4. Great post, Ardell. I think many buyers do not understand this. For example, when walk into a model home and the builders site agent snags them or same scenario, walking into an “open house” and hooking up with the listing agent.

    People (buyers) want to trust that their best interest will be protected and/or represented. They trust their gut instead of looking out for their best interest.

  5. I’m not sure what you mean by the buyer has to choose no representation.

    Unless the buyer had a signed buyer agreement with the listing agent, the listing agent only represents the seller. Signed buyer agreements are rather rare.

    Please explain.

  6. Jillayne
    I am not sure how it works in WA-land. When a licensee communicates with someone there is an implied relationship that would stand up in most courts. I cannot be too much help with the current laws there. Also something to consider, Realtors typically have two governing entities. One is the State and the other the board of Realtors. You will find a lot what appears to be a law, are an association rule.
    A good example would be in UT there is a board of Realtors rule that states that if an agent has an offer, that agent has the right to present it to the seller, with the listing agent present of course. The seller has the right to refuse, but it must be done in writing. Now this is not law, it is association by-law. It would not be dealt with in a court of law, it would be handled at the association arbitration. The power of the association is that if you’re not a member you’re basically out of the residential business, which can be more powerful than the law.
    The best rule is to pretend you are standing in court answering to a judge. If you are completely confident that what you did what was right by society, you’re probably OK.

    I hope you get some use out of it.

  7. Jillayne,

    The Law Practice Board (part of the Washington State Bar Assn.) takes the position that all an agent can do is fill out the form, and not explain the terms. A court might not support their opinion, so I won’t say that’s the law.

    Assuming it is, I don’t believe that would keep an agent from saying: “I selected this box” or “I filled in $375,000.00 as the price.”

  8. Hello Ardell,

    This post definitely made me think about how we handle/explain the contracts. Contracts is definitely not one of our strong points. Need to show this post to my boss. Especially us handling the buying side of the business 80% of the time.

  9. Seems to me that the only time this will happen is when the buyer chooses to use the Listing Agent to write up the offer. Are you telling me that the buyer would not understand that the listing agent works for the seller? Are buyer’s really that naive. Are there any buyers on this forum that would admit to having that misunderstanding?

    Also, the form works just fine for FSBO’s because there is no listing agent and no checkmark next to that box.

    Kary, you are mistaken about the legal authority of an agent concerning explanation of the contract. Your conclusion is a common misperception by many agents.


  10. “chooses to use the listing agent”. Is that the same thing as “calling from the sign”? Do you really think that when someone calls about a house from a sign, or goes to an Open House, they understand agency to the extent that they are “choosing” NO representation? Do you really think something as important as being left totally unrepresented should be relegated to a little check box?

    I have had questions from buyer consumers this year and every time the above scenario was used, the consumer thought they were represented. They thought it was Dual Agency. I had to ask them to go and get the contract and look at line 15. None realized that line 15 meant what it does, and all assumed the agent under their signature represented them when offering advices.

    Maybe if we started calling the “listing agent” what they really are, the agent for the seller, consumers would gain a little clarity.

  11. Kary,

    Not sure where you are, but clearly in the State of WA, a buyer does not have to sign a buyer agency agreement in order to be represented. Agents represent buyers as the default under our law, unless that agent is the one and only listing agent/agent for the seller. In the above example, “Jane Doe” would be the listing agent/agent for the seller.

    Clearly an agent has to be able to answer questions and explain what the person is signing. Makes no sense to me that an agent should “fill in blanks” and stand around like a wooden dummy.

    Seems to me saying “I selected this box” to explain to someone that they just agreed to be totally unrepresented, is not sufficient. The agency law pamphlet does not explain “no agency” to the extent that someone could agree to that, being fully informed when doing so.

  12. Ardell, I’m in Washington.

    The agent is the agent for the buyer, except where for four or five exceptions. The first is where the agent has a signed listing agreement with the seller. In that case they only represent the seller. Checking the wrong box (that they also represent the buyer” will not change that. The third exception is where they also have a signed agreement with the buyer.

    Quite frankly I cannot imagine a situation where the agent would represent both parties unless there was a signed buyer agreement in advance of the buyer viewing the property. There might be one, but I cannot think of it. But imagine you’re representing the seller and an unrepresented buyer comes in to look at the property. They want to make an offer on the property, but also say they want to be represented. How could you possibly go to your client to ask for a dual agency (provide them less representation) rather than refer them out? If you already had a pre-existing agency with the buyer that would be an entirely different matter. But I cannot see going to your client and saying you want to create a dual agency where none existed. That’s not serving your existing client’s interests.

    As to the explaining forms, it may make you feel like a wooden dummy, but that is the opinion of the Law Practice Board if you read their advisory opinion. It’s still posted on their website, which to me means they still think it’s correct. If you do engage in the unauthorized practice of law, bad things can happen to you. So it’s best to be very careful in this area.

    Finally, doesn’t everyone use Form 42 (Agency Disclosure) on their transactions? It’s a simple form that clearly states who the agent represents. If you require the use of the form there shouldn’t be any misunderstandings, or at least the any misunderstanding will not appear reasonable.

  13. I can’t imagine a world where an agent asks a client to sign papers, without knowing and explaining to them, what they are signing.

    As to dual agency and undisclosed dual agency and single agency when the consumer thinks there is Dual Agency, I think these are the most important issues we have today.

    People do not go by what is on the paper, but what they perceive to be true by the actions of the people in the room. Most people make no distinction when you are speaking with them, so they tend to believe you represent them if you are speaking to them.

    When the buyer asks “how much Earnest Money do I need to put down in this blank?”, they do not realize that the answer depends on who the agent represents. They seem to think there is only one answer regardless, and the agent speaking with them is responding in a manner that would best suit their situation and not the other party to the contract’s best interests.

    The issue comes up more today than ever, with so many buyers approaching listing agents directly to save money and properties in the mls that offer no representation to the seller.

    I think agents should have to pin on a big badge when talking to a buyer saying “I REPRESENT THE SELLER” or “I REPRESENT YOU”. Sometimes the person in the Open House is the Agent for the Seller and sometimes the person in the Open House is the Agent for the Buyer. I find it hard to believe that anyone thinks the average consumer looking at that house can tell the difference by looking at the agent.

    Used to be if a property was in the mls, a seller was represented. Now you have buyer agents presenting directly to sellers with no other agent in the room. Again, and in this case, the agent should wear a big badge saying “I represent the buyer”.

    Even when you tell people, it goes over their head and they still choose to believe that when they ask an agent a question, the answer is best suited to their interests. Most think there is only one answer, and do not realize the answer depends on who the agent represents.

  14. Kary,

    The instruction for Form 42 is that they are ONLY used when NOT using a Standard NWMLS purchase and sale agreement, which contains the Agency paragraph making Form 42 redundant. Since the standard form is used pretty much 100% of the time, the instruction manual eliminates the need for Form 42 in most instances.

    I think these instructions should be modified so that an agent uses a form 42 when presenting directly to the seller on behalf of a buyer client, and when writing the contract in these SELLER/SELLER instances where the agent assisting the buyer in writing the offer represents the seller. Anytime the consumer is spending an inordinate about of time with the agent for the other party to the contract, some signal beyond the norm should be in play.

    In a world that wants to eliminate at least one of the “middlemen”, this is becoming more important. Most people do not know that calling from an ad or a sign puts them in contact with the agent for the other party, most times. They are thinking about the property and their own circumstances, and not who is representing whom.

  15. I”m male so I don’t read instructions. 😉

    I was taught to always use Form 42, and I do. I also have the party sign the front page of the agency disclosure pamphlet. Buy doing that I have their signature or initials 3 or 4 places indicating they’ve received the pamphlet. Is that over-kill? Maybe. But I’d be extra-cautious in this area.

  16. Ardell, I agree it’s a very important issue. Our current system is much better than the old system where the agent almost always was deemed to represent the seller. If I were to change anything it would be to require a buyer’s agent showing property to give out the pamphlet prior to showing the first house.

    I have run into agents who think that who they represent affects the commission they’re paid. They think that unless they check the box indicating they represent the buyer, that they’ll only get 1/2 the commission. To me that is a dangerous situation because they’ve basically misrepresented their agency (I don’t believe checking the box creates agency–it merely discloses it). An attorney would have a good time in court with an inaccurate agency disclosure–it wouldn’t be fun for the agent.

  17. Kary

    The Law Practice Board does not determine who can practice law in the state, the Supreme Court does. The LPB’s opinion on the issue of explanation of form contracts is, in my opinion, a very narrow reading of Heritage House. Until the Supremes say differently, I still believe that agents can explain the forms as a part of the completion process. Otherwise, the whole basis of Heritage House (the bypassing of attorneys in simple real estate transactions) would be gutted.


  18. Russ, don’t shoot the messenger. I think I’ve made it clear that I don’t know whether a court would agree with them. But if they did, I believe you’re looking at possibly having committed a misdemeanor and possibly having violated the Consumer Protection Act. Neither of those is a good thing.

    I was very surprised when I stumbled across that opinion. I agree it’s a very narrow reading of Heritage House.

  19. I agree that covers you Kary, but with more and more people calling the listing agent directly “to save money” and being encouraged to do so, and more and more sellers putting properties in the mls but not being represented by an agent, this issue is more important now more than ever.

    I do think the forms are correct. But I also know that when a consumer asks the agent a question, the issues covered in the agency portions are rarely at the forefront of their mind.

    When a buyer agent “presents directly to seller” and is in their home for over an hour, the consumer doesn’t realize that the discussion may have been different had the agent represented them and not the buyer. When the seller agent writes the contract with the buyer, the buyer doesn’t realize that the advices may have been different, if the agent represented them and not the seller.

    Anything that potentially dupes the public, albeit unintentional, deserves more attention & some needed changes. Like a very long description of what it means to be totally unrepresented.

    I’ll go over the Agency Pamphet again, but as I recall, that pamplet describes “agency” and not “non-agency”. Perhaps a 2nd pamphlet is needed highlighting what it means to be not represented at all, aimed at both buyers and sellers. At present the pamphlet is written more for buyers than for sellers. A description of No Agency for sellers was never needed before, as unrepresented sellers were never before listed properties in the mls system.

    The times they are a’changin’ and consumer explanations need to keep up with the times.

  20. Perhaps the buyers need to be educated that going directly to the listing agent doesn’t mean the commission will be reduced?

  21. Kary,

    Sorry…not on target. Handing the pamphlet to the person you DO represent is not nearly as important as handing the pamplet to the person you DON’T represent. And the pamphlet clearly does not adequately address “You are not represented by anyone”.

    Given a seller deems that “they are paying the agent” as a FSBO, it is obvious that the seller doesn’t understand that the agent “they are paying” does not represent them in any way, shape or form.

    Where is the portion in the pamphlet explaining to a FSBO in the MLS that “being in the mls” does not give them access to advices from agents? Where is the portion in the pamphlet that explains to sellers, that when the agent comes with the offer in hand, it is NOT the same as when the listing agent comes with the offer in hand.

    The consumer protectons need to be revamped to keep up with these alternative business models. Surely the seller isn’t expected to know the difference between and agent for them bringing the offer and the agent for the buyer bringing the offer. Can we really just “assume” that?

    As to “the old days”, how does a SELLER/SELLER contract differ from the days of sub-agency? NOT AT ALL. So falsely leading people to believe that they are somehow protected better than the past, if they call from a sign or go to an Open House, is worse than the old days.

    Clearly my passion for this issue is not aimed at you, Kary. I appreciate your comments. Are you an agent? An attorney? Your Broker? I think when agents interact with the public, as in blog comments, they should reveal the same info as they do when speaking to the public in person on these matters. Normally when an agent is speaking, their name is blue and hyperlinks to a page that shows the agent’s affiliation. I can see your email address, but others can’t. If you complete the url section when commenting, the disclosure will be automatic.

  22. Kary,

    OR perhaps the agents should be educated that buyers going directly to the agent for the seller, means the commission SHOULD be reduced 🙂 I think that is more on target than educating consumers that they have to pay for representation when they are not getting any, don’t you?

    When all agents represented the seller, both “sides” were paid out. Why did that carry over after half the fee was for the buyer’s representation? Answer: It shouldn’t have. If the fee is for the buyer’s representation, and the buyer is unrepresented, a good clue and red flag that they are not represented, is to not accept the money intended to pay for their representation.

    How an agent can expect a consumer to understand that the buyer agent fee IS being paid BUT the buyer is not represented AT ALL, is beyond reasonable thinking. It defies logic. It is the agent system that needs to be changed, not the buyer who needs to be “educated” that they need to pay the same for nothing as they do or something. It borders on ludicrous.

  23. Man goes into restaurant, eats steak dinner and pays $50. Man goes into restaurant and decides to not eat and leave…still pays $50. Make any sense to you? Of course not. So why is a buyer who gets to the end with NO representation expected to pay the same as he would if he were represented?

    The forms need to be changed. The thinking of the people who write those forms, needs to be changed. No one should pay the same for nothing as they do for something.

    Agents who present directly to seller need to be trained how to ONLY present, and not offer the seller any advices. Training is taking a new shape…throw out the old books. Invent new training that more adequately reflects what is really happening in the world today.

  24. Ardell,

    I’m an agent and retired attorney.

    What I was referring to for “the old days” was when you could show a buyer 20 houses, not have one of them be a listing even with your office, have not met a single seller, but be considered the seller’s agent because that’s where the money was coming from.

    That was before I was an agent, but as an attorney I considered that system absurd. Rather obviously the buyer would think you were their agent in that situation.

  25. Russ,

    Regarding your comment #11, wouldn’t an attorney writing an offer for a buyer check “represents neither party”? Simply leaving the boxes unchecked does not offer a sufficient disclosure. The parties might think it was inadvertently omitted. I think an action needs to be taken. “represents neither party” seems to fit best. Well see what Craig says when he writes his post.

  26. I’m not disagreeing that the forms could be changed and the pamphlet updated. More disclosure/information is a good thing.

  27. Kary,

    I worked under sub-agency. I know what it is. It is the same as that SELLER/SELLER contract up there. Trust me. It plays out exactly the same at the time the offer is written, and all the way through to close of escrow. EXACTLY the same. If the old days were “absurd”, so are these SELLER/SELLER contracts. There really is no difference. We DID tell the buyer that we represented the seller the same as we do now. Telling them, and them “getting it” are not one in the same.

    What happens when an agent shows a buyer property for months and then they buy that agent’s listing and they do a SELLER/SELLER contract? Same as the old days…isn’t it? In the eyes and understanding of the buyer consumer…it is the same. The paperwork may be slightly different to better cover the agent’s butt, but in all other respects, it is exactly the same.

  28. What’s the policy of the NWMLS of non-members (attorneys, FSBOs) using their forms? I’d think they’d have the right under copyright law to prevent that. If they did, I’d think anytime that all the boxes were unchecked you’d have your basic copyright violation. Just a thought as to why the forms are written the way they are.

    Assuming they do prohibit that, is that policy changing with the new state wide forms that will come into play soon?

  29. Kary,

    Do you not explain to your clients what they are signing? Do you answer “you have to ask an attorney” every time they have a question about the pre-printed portions? How do you do that?

  30. But a buyer viewing multiple properties and then buying the agent’s listing is not that common. Under the old system the buyer was almost always unrepresented, even when “their” agent had no connection to the property they bought. That’s a huge difference.

    But you’re right, where the agent does hold the listing, it’s the same.

  31. Kary,

    This thread is following a spat I had with Craig. Craig already revealed that he uses the NWMLS form when writing contracts for people not represented by agents, both buyers and sellers. He wrote a post encouraging buyers to bypass agents and come to him, the same as he does for sellers. I’m wondering how a person is “represented” in the contract when that is done, or how the non-representation is addressed. He promised a post on this by today. So we are both writing our “position papers” 🙂 This is mine.

    Apparently attorneys can purchase the standard forms for a nominal fee. Perhaps there is an attorney prepared addendum that covers this matter, that is attached to the contract.

  32. Ardell, I’m still licensed as an attorney, so technically I can explain the forms.

    But as I stated, I think an agent can safely explain the blanks that were filled in and the boxes checked or not checked. Where you’d get into trouble possibly is explaining the terms of the contract that are just boilerplate (e.g. anything after the first page of the Purchase and Sale agreement.) But that’s just a guess. Who knows what the Law Practice Board was thinking when they wrote that, or what they think now.

    If it’s a complex form, I send the client to an attorney and offer to pay (I know a very good attorney who does that for a flat fee). I wasn’t a real estate attorney and also don’t want to take on the liability for being wrong. I really think that’s the best practice. For example I saw an addendum on an REO property where the addendum was about 6 pages and part of it expanded the default provisions from the simple loss of earnest money (and it also provided that any conflict in forms would go with their form prevailing). I really don’t think it’s the job of agents to review such documents and advise their clients regarding them. That would be an example where I would pay for the client to have the form reviewed.

  33. Unless I’m missing something, “selling licensee” is not a defined term. So a second option would be to fill in the listing agent’s information under both listing and selling agent, and select the box that both represent the seller (as is done above in the example).

    Stated differently, I’m not sure having an attorney involved in the process changes who the listing and selling agent is.

    But I wouldn’t say what Russ suggested is either wrong or confusing. The only thing confusing is the form not defining terms.

  34. Seriously Kary “I can but no one else can” is silly. Can you even imagine an agent not answering the same questions that you do? What do you think the other agents do in reality? Say “Oh I can’t say” through the whole process?

    If you look back at Craig’s last post, you will see that he encouraged buyers to bypass representation up to the point when it was time to write, as does some of the newer business models. When professionals and even attornies are recommending that buyers operate outside of the “agency pamphlet norm”, it is time to address this more adequately.

    Have to get into the office. Will catch up on some of the latest comments as soon as I can.

    Excellent and informative exchange. I am requiring all of my agents to follow this thread. Fabulous training and arguments from all sides. Thanks everyone.

  35. Ardell, what I actually said was I can, but I avoid it. So I’d recommend other people avoid it too.

    I don’t have quite the same exposure as other agents for giving incorrect advise (no criminal and no consumer protection), but I still have some exposure.

    I don’t find people want a lot of explanation. I just tell them these are standard forms used by the NWMLS, and they’re typically happy. I’ll also say something like “This is the inspection addendum, and I filled in 7 days rather than the default 10, so that it will be more attractive to the buyer.” But I won’t go into detail explaining the time deadlines.

    Would what I do satisfy the Law Practice Board if a non-agent did it? I think so, but I can’t even say that for sure. The less explaining you do the better, and if you have a client that needs more explanation than average, consider an attorney review.

  36. BTW, this is very similar to creating contract language on the forms (e.g. the last part of Optional Clauses.) The more you write on a contract that isn’t just filling in a blank, the more at risk you are.

  37. Thanks Ardell; as always, you’re a wonderful teacher. I *thought* we just bought our place in Fremont under dual agency — this evening I’ll be double-checking the PSA to make sure.

  38. BTW, looking over the disclosure pamphlet, 90% of it is just repeating the statutes in Washington on agency. Something more consumer friendly would be better.

    Also, Ardell, I’d have to go back and look, but I’m pretty sure the last transaction I did where there was no agent on the other side I did give them a pamphlet, and explain to them I wasn’t representing them. Also, if I’m showing a buyer around, and I happen to show them a listing of mine I’ll let them know before we get there that I won’t be representing them on that transaction, and not to let me know what they’re willing to pay, etc. But again, I really think Washington law should require that disclosure in writing, and before the time that an offer is made.

  39. DavidG, did you have a signed agency agreement before making the offer (or at any time)? I’m just curious whether you had a dual agency situation, or what I would consider an improperly disclosed seller only agency.

  40. Ardell,
    Great Post! Very interesting and what a thinker! This is a sticky sticky item and I can see where there would be a lot of room for human error and advantage. I think that letting buyers know this stuff is great. Good Luck on the Vote.

  41. Kary,

    You said: “I’ll let them know before we get there that I won’t be representing them…”

    I’ve been having a series of short meetings in my office trying to impress on agents generally that for buyers to CHOOSE agency, the agent can’t be the one doing the choosing for them. There seems to be a common misperception that the agent gets to choose the type of agency, and is only obligated to inform the consumer about the agent’s choice.

    SELLER/SELLER contracts come into play when the agent chooses to not participate in a Dual Agency transaction. The agent elects the agency type, that being NONE, for the buyer consumer.

    I was recently contacted by a buyer in this situation asking if I could represent them. Once the agent decides NOT to represent the buyer, doesn’t the buyer then get to say “thanks but no thanks” and go out and hire someone who WILL represent them?

    The listing agent seemed to think the buyer was obligated to move forward on the SELLER/SELLER basis, because they had gotten to the point of writing the contract, even to counter stage. Seems to me the buyer can elect to be represented at any time the light bulb goes on and they realize that they need and want representation.

    The problem with agency is that it is not presented as an option but as a disclosure. Agents are giving the pamphlet to disclose and explain the type of agency the AGENT is choosing FOR them. Rather there should be a form at the end where the consumer makes the agency type choice.

    Instead of agency being up on line 15, maybe down where they sign it should say “Buyer chooses: 1) to be represented 2) NOT to be represented 3) Dual Agency, and the agent should never be the one checking the box FOR them, anymore than they would sign the contract for them.

    If the buyer were the one doing the checking of the agency boxes, instead of the agent who prepares the offer, I doubt many would be checking the box that says everyone should represent the seller only.

  42. Ardell,

    I’d disagree. In the context of my showing a potential buyer a listing I am not their agent unless I already have a buyers agency agreement signed with them. They do not get to choose. Their only choice is to make an offer through me and not be represented, or to go to some other agent to make the offer (perhaps one I’d refer) and be represented.

    And again, I cannot see a situation where I’d go to an existing listing client and tell them: “There’s a buyer for your property and they want me to create a dual agency.” If it doesn’t already exist at the time I show the house, it’s not going to be created afterward. That would not be representing my existing client.

  43. Ardell wrote: “The problem with agency is that it is not presented as an option but as a disclosure. Agents are giving the pamphlet to disclose and explain the type of agency the AGENT is choosing FOR them. Rather there should be a form at the end where the consumer makes the agency type choice.”

    And I really disagree with this. It is a disclosure. The buyer cannot force me to represent them. The buyer cannot force my seller client to accept a dual agency.

  44. Kary,

    Clearly the buyer gets to choose their type of representation, and then you can decide whether or not you will offer them the type they have chosen. Then they choose whether or not they want you or their agency type of choice. It’s time for the industry to stop being “in charge” of what people can and cannot choose.

    As to sellers, they want you to sell their house primarily, in my experience, and have never had one object to my doing so.

    As to your not representing a buyer unless they sign a buyer agency agreement, read the agency pamphlet. The law says you DO represent them without an agency agreement. How do you reconcile NOT representing a buyer unless…when the law says that you do?

    I have never understood this about agents in Washington. We have the best law in the land, and agents ignore it and impose their own feelings and interpretation. One of the very first statements in the agency pamplet is that ALL agents represent buyers, unless they are the agent for the seller. How can that possibly be misinterpreted to the degree that it seems to be?

  45. Ardell wrote: “As to your not representing a buyer unless they sign a buyer agency agreement, read the agency pamphlet. The law says you DO represent them without an agency agreement. How do you reconcile NOT representing a buyer unless…when the law says that you do? ”

    Neither the pamphlet nor the “law” does not say what you claim. It says:

    “A licensee who performs real estate brokerage services for a buyer is a buyer’s agent unless the:

    (a) Licensee has entered into a written agency agreement with the seller, in which case the licensee is a seller’s agent;”

    Thus, if you have a listing agreement with the seller, you do not represent the buyer.

    The exception is:

    “(c) Licensee has entered into a written agency agreement with both parties, in which case the licensee is a dual agent.”

    This is very basic stuff. I don’t know how you could have misinterpreted it so badly.

    There are dire consequences for this type of mistake. If you wrongly state you represent the buyer and seller, when you only represent the seller an attorney would rip you up in court. He/she would ask: “Which were you doing? Representing your client as you should have been, or as you claimed on your disclosure?” Whichever way you answer the buyer and seller would have a valid claim against you.

    This would be where you had a pre-existing written agency agreement with the buyer.

    Look at either RCW 18.86.020 or the agency pamphlet itself.

    This is very basic stuff.

  46. I need to hit preview more.

    The sentence regarding the pre-existing contract shoudl appear right after paragraph (c) from the statute.

  47. Kary,

    You said “In the context of my showing a potential buyer a listing I am not their agent unless I already have a buyers agency agreement signed with them.”

    Based on your response, you must have meant to say “my listing” or “a listing of mine” and not “a listing”. I read that to mean any listing of any agent.

  48. Yes, that was post 47 above. I was ambiguous in the first paragraph, but in the second paragraph I was clear I was talking about a listing that was mine.

    If I did not have a listing with the seller, I would be the one without a choice–the buyer would be my client.

    Sorry about the ambiguity.

  49. My apologies as well, I’m often reading on the run and I am very literal. Also it’s a pet peeve of mine, so it hit a trigger. I attended the ABR class here in WA and a national curriculum said that an agent does not represent the buyer without a buyer agency agreement. I was furious at the “mis-teaching” relative to the laws of our State. I have heard agents say that they represent clients with contracts differently from buyers who won’t sign them, and I do not see that flexibility for unequal treatment under our laws.

    Didn’t mean to jump on you, I jumped on “it”, a statement I have heard all too many times. Glad it was a misunderstanding.

  50. Same here. My mistake really–I should have been clearer.

    But I do agree with the point you just made. If you don’t want to treat a buyer that signs an agency agreement the same as one that doesn’t, you probably should not be servicing the one that doesn’t. That’s the agent’s choice in that situation. If you don’t trust your client, send them elsewhere.

Leave a Reply