Florida and a few other states recognize how difficult it is for one agent or a brokerage with multiple agents to maintain their fiduciary and statutory obligations to both parties when the interests are so different. The
If a listing agent provides you information about the seller's intentions, or says she will represent you, run...or contact me and I will find a qualified agent for you.
In states where dual agency is permitted -- in the southeast, all but Florida and Alabama permit it -- all parties must agree to the arrangement in writing and must be informed that the agent's (broker's) duties of disclosure and confidentiality are limited by the consent of the parties. In practice, this "informed consent" alerts both the buyer and seller that they should be more vigilant about their interests than if they had independent representation.
Brokers cannot intend to create an undisclosed dual agency, but sometimes through the inexperience or zealousness of an agent, it can happen. For example, an agent may have acquired a house listing and scheduled an open house. At the open house, a couple wanders in and asks if the price is firm. The agent responds that she thinks the seller might take 10% less than asking price. This would lead the potential buyers to believe the agent is working for them ("implied agency") and could put both an eventual contract and the agent's license at risk because such an undisclosed dual agency violates state law.
The advice here is simple: Identify and engage a qualified real estate agent to represent you -- and only you
The vast majority of agents understand the distinction between responsibility and greed.
Here's one small but telling example from a couple in Louisiana about the potential consequences of being unrepresented in a real estate transaction (I've edited their online account):
We bought a house using a dual agent. We were pushed to close sooner than we intended even though, in order for the prior owner to sell the house, he had to install a new septic system to make it current with regulations (use of the old system had been grandfathered after new regulations). We were told that if we went ahead and closed, the owner would put the money in escrow for us and we could go ahead and move in, but we were not going to be able to transfer the electricity to our names until the new septic was installed. According to our agent, it wasn't going to be an issue because the owner would keep electricity in his name until the installation. Unfortunately three weeks later, it hasn't stopped raining and the septic still has not been installed. The prior owner has cut off the electricity. We are going on two weeks now with no electricity and no hope of installation any time soon.
Generally, it costs you nothing to retain your own "buyer's" agent; they are almost always compensated by the listing brokerage. Your own agent must disclose to you, up front, and in writing, any potential obligation on your part. Do not go it alone. To paraphrase a popular line, the potential buyer who represents himself in a transaction has a fool for a real estate agent.
Tomorrow: Dishing the dirt: Strategies for dealing with the developer's sales office.
