I set out to write an article on the contradictions and complexities of dual agency (sometimes referred to as double ending a deal) in real estate but in reviewing the different court cases and literature, I soon had so many thoughts on paper that I decided to make it a series.
I’ll start by throwing out a few ideas for consideration and in the next few articles I will dive deeper into each idea one by one.
“If two consenting adults choose to attempt a transaction through one agent…I argue they should bear more responsibility in the outcome.”
Firstly, in researching this, one thing that stood out in all the literature was the singular focus on the actions and responsibilities of the real estate agent with only fleeting enquiries into the behaviour of the parties, both consenting adults.
As well, I see what appears to be a flaw in the way the law treats dual agency in real estate. There is a major difference between legal disputes and real estate transactions in that when two parties contact lawyers, there is already a dispute between the parties and the lawyers are engaged under the accepted premises of an adversarial process.
In a real estate transaction, the two parties are generally aiming to conclude a mutually satisfactory transaction (though often each is hoping to come out a little better than the other party). It is usually only after or at the end of the transaction that the situation tends to become adversarial, yet the entire process is legally treated as adversarial from the beginning. If two consenting adults choose to attempt a transaction through one agent, they are doing so in the hopes of gaining some benefit and as long as that consent was given with full and timely disclosure, I argue they should bear more responsibility in the outcome.
This human tendency that aggravates dual agency is, to me, best described in the joke about two horse traders. A fellow comes upon two horse traders arguing. He asks what is wrong and they both say that the other guy ripped them off in a trade of horses. He asks them why they didn’t just trade back then and forget about it. Both reply that they don’t want to get ripped off again. Doesn’t that sum it up so well?
“The added risks involved, in my opinion, more than justify the full commission being paid to the one agent, yet both parties often expect a reduction.”
Oftentimes, one of the parties, usually the buyer, will request their agent to contact the other party on their behalf in the hopes of effecting the transaction without a second Realtor and expecting you, the agent, to work in their best interests against the other party. There are a few reasons for this, however, the hope that they (the buyer) will come out ahead is not the least of them, and this puts the real estate agent in a very unenviable position. Sometimes, if you don’t do it, the buyer will find someone who will. Additionally, the added risks involved, in my opinion, more than justify the full commission being paid to the one agent, yet both parties often expect a reduction.
Given that both parties are often looking for “a deal,” this puts the agent immediately in a seemingly irreconcilable conflict of interest. Usually, the more sophisticated client is the one initiating the process and their hope of garnering a “deal” diminishes the more the agent provides market information to the other party. So, the more work an agent does, the less the chance of a deal, and the greater chance of not getting paid for doing more (and better!) work. The less work an agent does, the greater the risk of legal liability and sanctions.
“Finally, under fiduciary duty, we are expected to place our interests beneath those of our clients.”
At this point, I should add that there is nothing illegal or unethical about seeking a “deal.” This is part of human nature, and there is nothing inherently wrong with it. I say this because this conflict is compounded by the fact that the initiating party is often an active investor, the kind of client an agent needs to thrive. The fact that we are in fiduciary relationships per se (fancy legal way of saying by default), precludes agents from favouring the better client in effecting a deal.
Finally, under fiduciary duty, we are expected to place our interests beneath those of our clients. I find this a curious statement. I have also seen this worded as we are to place our clients’ interests as paramount. This I have no issue with, but the first statement I do because, as worded, it implies we must diminish our interests.
This begs the question, how far? I expect a) to be remunerated for my efforts, and b) that that remuneration is fair—and I am not prepared to reduce these expectations. Everyone expects this when they go to work in the morning, but am I to diminish these interests? Why? And how much so?
Stay tuned for more on these thoughts as we do deep dives into each one individually as we explore the wonderful world of dual agency.