Dual agency form?

Avalonxe, did this borker tell you that you had to sign the form in order to see the apartment?

nope, brought out form after i had viewed apt.

REBNY keeps promising that within three months everyone will be accustomed to signing the agency disclosure form. The persistence of this theme on the Streeteasy boards indicates otherwise.

The (potential) benefit to you is that dual agency, consented to by both seller and buyer, alters the relationship between the agent and the seller. If all parties agree to dual agency, the broker no longer owes undivided loyalty to the seller. Why would a seller agree to that? If he/she believes that the buyer should have some degree of representation in order to facilitate the transaction. Under the new law, the dual agency relationship can be created earlier in the transaction than under previous guidelines. If the seller agrees in advance, then the agent can offer this option to the buyer.

If you instead choose to waive dual agency, the agent will check off "seller's agent" and you will continue unrepresented. If you do so, the agent remains obligated exclusively to the seller. Either way, your choice has no effect on what fees the seller will pay to the agent. If you are not using a buyer's agent from another brokerage, your deal would be considered a "direct deal" whether you decline dual agency or not.

Does dual agency protect the consumer? Yes! Yes it does! Does the whole thing make everyone uncomfortable? Yes! Yes it does! But according to REBNY, we'll all be used to it about eight weeks from now. Here's hoping.

Tina Fallon
Realty Collective, LLC

avalonxe, this is new law, as of jan 1, what you would be signing is not a contract between yourself and the agent, it is you acknowledging that you have been advised of the different types of agency that exist. The agent has already signed one with the seller who they represent that agrees to dual agency and dual agency with designated agent. It sounds like this agent made an error and had checked the wrong box, she should not have checked buyers agent. If you went to her to view directly and this is the only property she showed you, it is not even a dual agency situation, she only has fiduciary obligations to the seller. Dual agency would be for example, if you decided that you liked this broker and wanted to be shown other property through her, and worked with her on that basis, but then decided that property number 1, where you met her originally was the one you wanted. Hope that helps.

tina and dax, many thanks for your prompt and helpful responses. she didnt say whether seller had agreed to in advance to dual agency. dax - she specifically checked buyers agent, which made me wonder if she was indirectly trying to get me to agree to her representation or something. either way, this is really helpful info. thanks again. i was worried i would be signing up for something (despite the "this is not a contract" disclaimer on the form).

it is an awkward form and conversation to have with a potential purchaser, but once the agent fully understands the form it is easily explained. I think perhaps she had not done many since this just started Jan 1. In the long run i think it is beneficial for both parties so they know exactly who has what obligations, but, this is NYC, we are all naturally guarded about being handed a wordy document and signing upon a first meeting.

Clarification regarding "dual agency" which exists when a buyer sees an exclusive listing through an agent (who the buyer requests represent them) and if the agent who represents the seller works for the same broker (e.g. Triumph Property, Corcoran, Halstead, etc). There is only one "broker" of record for each firm and many agents/salespersons who work for them so this situation happens a lot in NY because a few brokers dominate the market. When dual agency occurs and if BOTH parties have agreed to it,undivided loyalty is lost but the real estate agent is still obligated to provide fair and confidential service to both in order to facilitate the transaction. If as a consumer you want an agent's undivided loyalty and both the seller's agent and your agent work for the same firm (i.e. broker), you can request that your agent be named your "designated agent" and they will act exclusively on your behalf with no loyalty to the seller.

I hope this helped clarify some of the mystery. We are still working out the kinks.

Althea Ffrench
Licensed Salesperson
Triumph Property Group

avalonxe,
Check out this article:

http://www.realtown.com/sandymattingly/blog/manhattan-real-estate-business/new-real-estate-agency-law-disclosures-coming-to-manhattan-in-2011/

"...as of January 1, the written disclosure about agency must be given in all real estate transactions, which I take to mean that all buyers in Manhattan (sellers too, but the real change impacts buyers more) will be told in writing whether the agent they are talking to represents them, represents the seller, or (might) represent both of them..."

Anyone who signs a document that indicates that something "MIGHT" happen is a fool.

If you're a seller - don't give up your exclusive right to your brokers undivided fiduciary duty.

If you're a buyer - don't sign anything except a contract for sale. You have no obligation to sign anything until you make an offer. If you think the sellers broker is not dealing fairly with you then attempt to contact the seller and inform them of your concerns.

tina24hour wrote:
"... Does dual agency protect the consumer? Yes! Yes it does!..."

If by consumer you mean broker, maybe.
Would you please elaborate on how this protects any consumer?

I don't understand why you would not have an agent working on your behalf. The seller has representation, so why wouldn't you? Would you go to court against someone and not have an attorney?

I understand there is a wealth of information out there, but I think it's gone to peoples heads.

Scott K
Bond New York

The "seller agent" and the "buyer agent" both just want the transaction to close. They are on their own side, period. Your lawyer is probably the only one who is truly on your side, assuming you got a competent one. I would never sign away anything until a price has been negotiated; what I am willing to sign will be part of the negotiation.

Sunday, if you don't sign the agency disclosure form it's recorded that you have refused to do so. Should a problem arise later your avenues of recourse may be very limited because you chose not to sign.

Good luck!

Scott K
Bond New Yotk

NYCREAgent, I'll talk to my lawyer about this and get back to you.

Dual agency agreement is one of the slicked anti consumer pieces of crap that I have ever seen.

If the seller agrees to dual agency then the brokers’ fiduciary responsibility to the seller is significantly reduced. There is not much down side for the buyer to sign although some buyers may feel that they have established a relationship with the broker that goes beyond the particular transaction.

The lawyers for the major agencies fought long and hard for this and the agencies have now trained their brokers as to what to say to sellers and buyers.

One broker that I ran into at a showing had the dual agency checked off and said that they had made it mandatory that all sellers agree to dual agency or they could not represent them. At the same time this broker said to me that it was only a technicality and meant nothing. So which is it?

I see this as a way to mitigate the loss of revenue due to potential buyers not using the traditional model of having two brokers in the transaction and using alternatives such as Streeteasy.

And to NYCREAgent, if you want to come off sounding like a legal expert fine, but since when is signing a doc preserving your rights? The greatest protection and the preservation of rights for the consumer is not to sign.

ieb, I wasn't trying to come off as anything. I was answering a question.

avalonxe, the show-er of any listing that you see should present a form to you that indicates that they are the seller's agent and they represent the seller. The dual agency part of the form, I believe, could just be left blank.

IMHO, you can go ahead and sign that -- it doesn't prevent you from either going forth unrepresented, OR bringing in your own agent later.

If, however, the lister has checked off the "dual agency" part, that's more complicated.

I think if you sign, it sends a signal to the show-er that you accept their representation, and muddies the waters a little if you progress further and want to bring in your own buyer's broker. According to the Department of State, you're allowed to pick your own representation, so I'm sure you could still do it, but I can imagine a firm or two that would throw up a little nastiness about it.

If you don't sign, and don't accept dual agency, what you're really giving up is the ability of the show-er to tell you about their firm's other listings.

ieb, I'm surprised at your take on this form -- I hate it; I think it screws up the rhythm of a sales or rental presentation, and I have yet to meet another agent who likes it.

ali r.
DG Neary Realty

NYCRE - OK, maybe you just sounded like someone who knows what they're talking about.

Ali - sure, you may feel that way but your company is quite pleased with it.

Do not sign anything unless it clearly states that the agent works exclusively for you. "Dual" really does not mean "both" in this case, it really means "no one". A buyer signing it might get the false impression that the agent works for them too...

front_porch: "If you don't sign, and don't accept dual agency, what you're really giving up is the ability of the show-er to tell you about their firm's other listings."

That cannot possibly be true. Let's say you have 3 similar listings and I attend one of your open houses. I can understand it would not be appropriate for you to discuss another property with me at that open house. However, If I call you up the next day and ask if you have something else that I might be interested in, you will not tell me about your other listings unless I sign something???

AvalonXE -- going back to your original question, if the agent represents the seller as of the open house, she canNOT be your Buyer's Agent for that property, but she can (if both you and seller agree after a detailed explanation) be a Dual Agent. If Dual, she cannot be a fiduciary for either party, which I take to mean can only give very limited advice thereafter.

For you as buyer at that open house, the choices are to accept Dual Agency or accept that she represents only the seller; whether you get your own Buyer's Agent or not is a different decision (made after you reject Dual Agency, so she would only be Seller Agent with regard to you).

Sunday is parsing the language in a way different than I would. "Dual" DOES mean "both" instead of "no one", but after an agent becomes Dual the "representation" she can provide either side is VERY different than if she only "represented" one side. My thanks to Andwin for linking to my 9.1.10 blog post, which takes a *really* long time to walk through the critical issues here, because this is complicated stuff.

Whether it is in the best interests of a buyer or a seller for an agent to be Dual is a decision best made by that buyer or seller at that time, given the specific facts. For most sellers, I expect it will be a difficult (informed!) choice to accept that an agent no longer represents him/her fully, but there might be cases in which it makes a seller comfortable. For most buyers, there are not many things "gained" from taking on the (former) seller's agent as "your" Dual agent, but there are probably some, in some cases.

I think IEB is right that the firms are happy with the new form and the procedure because it gives them some protection they previously lacked.

What gets lost in these discussions is that the new procedure is "new" for NYC agents only: (aside from the consent-to-dual-in-advance provision) every other agent in New York State has long had to provide this form (with its old content), and ALL agents in NYS (including NYC agents) were supposed to have these conversations. It is NOT a 'big deal' outside the City, so (eventually) will not be a big deal in the City. While the specifics vary around the country, virtually every state has some kind of mandatory disclosure about "who represents whom", and it is hardly rare for there to be lawsuits over the adequacy of the disclosures. Manhattan agents are just late to the party. It is the prospect of lawsuits that (I suspect) got REBNY to want the compromise that I talked about in that long blog post.

SMattingly: "...after an agent becomes Dual the "representation" she can provide either side is VERY different than if she only "represented" one side."

That is why I interpret "dual" = "no one" in this context. I suspect most sellers, buyers, and even some agents do not fully understand the rules/limitations of what it implies.

SM - I think IEB is right that the firms are happy with the new form and the procedure because it gives them some protection they previously lacked.

Yes, protection for the agency at the consumers expense.

Sunday, at the point when you call, the agent that you call again needs to make clear that they are representing the seller on all listings. If you want to go by yourself, or bring your broker, that's fine. But if you ask them to take you around, you are again creating dual agency, because remember the broker of record here is not Sandy (let's say) it is the Corcoran Group.

Let's say you see a loft listing of Sandy's, and you like him, so you call him the next day and tell him you're going up in budget, and you'd like to see another loft listing of his firms, say something that Chris Poore has.

You have just created a dual-agency situation with Corcoran potentially on both sides of the deal.

In terms of being "late to the party" -- I have ALWAYS explained this verbally: it's having a form, and the confusions of the timing and over the wording of the form, that make this more difficult.

For example, I never used to have the "dual agency" conversation until dual agency was actually created. Now I have to explain it as a hypothetical -- and you can see how complicated that is.

ali r.
DG Neary Realty

front_porch, in the scenarios you described, do I HAVE to sign anything? Is Sandy or Chris not working exclusively for the seller?

Most real estate lawsuits come about because of a lack of understanding regarding Agency.

Scott K

Bond New York

It is weird seeing all these borkers with their knickers in a twist. It's like a watching a fight at
a sorority party. It's oddly compelling but, at the same time, you want it to end.

>all these borkers with their knickers in a twist

Oh, now you are British

>It's like a watching a fight at a sorority party.

I suppose you want us to believe that this is a fantasy of yours, right?

Sunday, you NEVER have to sign anything -- if you don't want to, the agents just swear out an affirmation that the form was presented to you, and you refused to sign. (Ah, paperwork!)

But the scenario I just described is exactly why the agency discussions -- and the forms -- exist. In the scenario I described, where Chris has a listing, he is working exclusively for that seller. (Until, of course, one of his buyer customers wants to see that listing, and then there's a dual agency created).

However, Sandy's position -- in this hypothetical -- is more likely to vary. If he comes on here and says "hey Chris in my firm has a neat loft" -- or writes that on his great blog -- he is a sub-agent of the seller.

However, let's say you meet Sandy (again, apologies Sandy for using you in this scenario) at one of his open houses -- he's then an agent of that seller. If you later call him -- he's your buyer's broker on any listings you see that aren't Corcoran's, and a dual agent on all Corcoran listings.

So we've just seen him in three different agencies vis-a-vis one customer -- you.

And MidtownerEast, are we agents supposed to *apologize* for discussing the best way to do our jobs conscientiously and legally? Really?

ali r.
DG Neary Realty

When did I ask you to apologize? It just seems odd that you brokers are creating a kerfuffle among yourselves, in full view of the world, when the obvious answer is to get a lawyer's help (as Sunday suggested) since "dual agency" is a legal term. But, if you want to flail about in public, go for it.

ME, we have a lawyer -- Neil Garfinkel is the REBNY Counsel, and many of these finer shades of meaning come from him. Scott and I enjoy discussing them as a way of sharpening our skills, so we can best serve our clients. No kerfuffle whatsoever.

ali r.

front_porch,

I know I do not have to sign anything. I was addressing your statement: "If you don't sign, and don't accept dual agency, what you're really giving up is the ability of the show-er to tell you about their firm's other listings."

Also, unless Sandy and Chris sign something explicitly stating otherwise, they work for the seller, not the buyer in all the scenarios you described. Note it is not what I signed, but what Sandy or Chris has to sign.

Buyers signing a dual agency "disclosure" might get the false impression that the agent works for them too... How many people who thinks they have a buyer's agent actually truly/legally have one? This little extra paperwork only adds to the confusion.

A seller should never sign anything that basically say the agent/broker no longer work exclusively for the seller. Imagine if the difference is just a checkbox on a form that is sold as standard paperwork.

I disagree Sunday; we were just told that if you call an agent at a firm, and ask to see the listing of a different agent at that firm, the first agent's stance towards you is buyer agency, not seller agency.

ali r.
DG Neary Realty

FP -- I see how these public disagreements are really building confidence with prospective clients.

FP - Your last statement is seriously twisted. Take a chill pill and stop posting on this thread. You’re making yourself sound ridiculous.

To say that simply calling your office and speaking to the person sitting next to you establishes buyer agency is absurd!

ieb - nothing new from Ali G.

She just contridicted herself as previously she stated that the FIRM is the broker of record, not the individual broker

Per Ali G. -

"because remember the broker of record here is not Sandy (let's say) it is the Corcoran Group."

So, if I call a BROKER FIRM and one agent calls over to a BROKER PERSON at another desk about a listing I called about, it does not create a seperate buyer or seller agency because the BROKER FIRM will be the BROKER of record, not he individual broker

ONLY after I agree in writing and acknowledge that the BROKER FIRM is on both sides of the sale and that they represent the seller, that I waive my rights to representaion

Otherwise, just calling and having one broker yell to another about their listing, does not create any legal standing that the BROKER is now my BROKER

front_porch, the industry can call it whatever it wants and I even agree that the first agent in that scenario deserve part of the commission paid by the seller. I did meet the first agent and specifically called her. She should get paid for her referral. However, the buyer should know that the so call "buyer agent" in this case will always look out for herself, the brokerage(firm), the seller, and then the buyer, in that order. The whole dual agency paperwork just make is easier and less controversial for the brokerage to collect the full commission (buyer and seller agent). Even if the actual rules didn't really changed, it makes it harder for the seller and buyer to argue for a smaller commission/lower price in situation where there really is no true buyer's agent.

Actually, I got an email from a potential client last night, an out-of-towner who thanked me for explaining the Manhattan market in my many posts.

Sorry that it hasn't worked that well for some of you all, though. As I said before, this is the interpretation of agency rules that we were given by our trade association... but I'm certainly not an attorney, so perhaps there are additional subtleties I'm missing.

Let's go to "consult your attorney" and leave it at that.

ali r.
DG Neary Realty

Ali G. -

We can now add condescending to your list of traits