Agents from the same brokerage often find themselves participating in the same transaction. Different situations result in different relationships.
In the first situation, a RE/MAX Around Atlanta (RMAA) agent represents the seller of a property as a client. Another RMAA agent represents the buyer as a customer.
Question: What is the relationship of the buyer’s agent to the seller?
Answer: Both the buying agent and the selling agent are representing the client.
The agency section of the GAR Purchase and Sale Agreement was tweaked in 2023 to clarify exactly this situation. The Purchase and Sale Agreement clarifies that if the same brokerage firm is representing one party as a client and another party as a customer, then all of the agents in the transaction are technically representing the party with whom the brokerage firm has a client relationship. This is because agency relationships are determined by who the Broker is representing, rather than who the affiliated agent is working with.
You’ve probably noted that the agency language in the GAR Purchase and Sale Agreement distinguishes between the two by stating that an agent “is working with” a customer and that an agent “is representing” a client. A client of the Broker, RE/MAX Around Atlanta, is the client of every affiliated agent in RMAA.
The second situation is Designated Agency. In a designated agency, both the seller’s agent and the buyer’s agent work for the same agency and are both representing their parties as clients. The designated agent for the buyer owes the same duties to the buyer as if the agent was acting only as a buyer’s agent. Similarly, the designated agent for the seller owes the same duties to the seller as if the agent was acting only as the seller’s agent. With designated agency, each designated agent is prohibited from disclosing to anyone other than his or her broker any information requested to be kept confidential by the client (unless the information is otherwise required to be disclosed by law). Therefore, designated agents may not disclose such confidential information to other agents in the company. The broker is also prohibited from revealing any confidential information he or she has received from one designated agent to the other designated agent, unless the information is otherwise required to be disclosed by law. Confidential information is defined as any information that could harm the client’s negotiating position which information the client has not consented to be disclosed. In Georgia, designated agency is defined by state statute not to be dual agency.
The third situation is Dual Agency. With Dual Agency, there is no 2nd agent from the same brokerage. Instead, a single agent (or team) is representing both the buyer and the seller as clients. The RMAA agent would have agency agreements with both parties to represent them both as clients in the same transaction. We see this happening when an agent has a buyer client that has executed a Buyer Brokerage and that buyer wants to buy a listing in which the same agent represents the seller. In these situations, neither party is exclusively represented as in a designated real estate agency.
Dual Agency Requires the Consent of Both Parties
Georgia law allows real estate brokers to act as dual agents if they first get the written consent of both parties. The written consent must contain the following: (1) a description of the types of transactions in which the licensee will serve as a dual agent; (2) a statement that as a dual agent, the licensee represents two clients whose interests could be different or even adverse; (3) a statement that the dual agent will disclose all adverse material facts regarding the transaction known to the dual agent to all parties to the transaction except for information that is made confidential by request of another client and that is not allowed or required by law to be disclosed; (4) a statement that the licensee will disclose to each client in the transaction the nature of any material relationship the licensee or his or her broker have with other clients in the transaction other than incidental to the transaction; (5) a statement that the client does not have to consent to the dual agency; and (6) a statement that the client’s consent has been given voluntarily and that the client has read and understood the brokerage engagement agreement. This special consent is required because of the potential for conflicts of interest in dual agency transactions.
Dual Agency can be very tricky. RMAA does not offer Dual Agency unless an unavoidable situation requires it. If that happens, the situation must be discussed with an RMAA Broker for individual permission for the dual agency transaction and, of course, consent must be given, per the above paragraph, by each party.
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