When a Property Owner Retains a Real Estate Agent to Market the Property, What Are the Agent’s Duties to the Seller?
Real estate owners routinely enter into listing agreements with real estate agents wherein the agents agree to market the properties to potential buyers, in exchange for sales commissions. The commission is negotiable, but it is usually from three to seven percent of the sales price. The relationship between the seller and the real estate agent is known in legal parlance as that of principal and agent, and the seller’s agent is sometimes called the listing agent.
Buyers also typically retain real estate agents to represent them from the purchasers’ perspective in a real estate transaction. A buyer’s real estate agent is sometimes called the selling agent. The buyer’s agent typically will split the commission with the seller’s agent. This article will focus on the duties of the listing agent to the seller, although the buyer’s agent’s duties are similar.
The role of the real estate agent as an agent of the seller is that of a fiduciary. Fiduciaries must always keep the best interests of their clients foremost in their minds. While the fiduciary duties of listing agents may vary slightly between states, some common duties are virtually universal:
- Duty of Confidentiality – A real estate agent has the duty to keep private client information confidential permanently, unless instructed to reveal it by a judge.
- Duty of Obedience – A real estate agent has the duty to follow the instructions of the client, unless asked to do something unlawful.
- Duty of Accounting – A real estate agent must account for all monies and legal documents entrusted to him or her in the course of client representation.
- Duty of Disclosure – A real estate agent must report all beneficial information learned by him or her to the client, especially if the information is likely to influence the client’s decision making.
- Duty of Good Faith and Loyalty – A real estate agent must always act with the client’s interests first and foremost, even above the commission. The agent should avoid conflicts of interest with the client.
- Duty of Care – A real estate agent must have the professional qualifications, knowledge and training to safely and diligently perform his or her duties on behalf of the client.
A common breach of a real estate broker’s fiduciary duties of loyalty and disclosure is self-dealing. A typical example of self-dealing by a real estate agent is when he or she buys the client’s property personally and sells it to another buyer for a secret profit. A real estate agent is not supposed to purchase property he or she is listing on behalf of a client unless all relevant facts are fully disclosed to the client and the client consents. Before consenting, the seller should consult a skilled real estate lawyer and have an independent appraisal.
Depending upon which fiduciary duties are breached, the extent of the harm to the client and the law of the particular state, the client may be able to get the transaction rescinded or the commission refunded. Additionally, the agent may be liable to the principal for money damages. These legal remedies may be available just because of the real estate agent’s breach of fiduciary duty, even if no particular harm to the client or benefit to the offending agent can be shown. The agent may also lose his or her license.
It is a good idea for a seller of real estate to consult an experienced real estate attorney even when represented by an agent. The lawyer can give advice about the real estate agent’s fiduciary duties, and can draft or review real estate agent retainers and documents of sale.
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