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Ruling Reopens Questions About Dual Representation
One step ahead, two steps backward. Just when we thought we were making progress in the rolling controversy over who can represent whom in a real estate deal, a court decision arrives that shakes the framework.
A Minnesota judge recently ruled that the largest real estate firm in the Midwest did not adequately disclose to the buyer that the firm represented both buyer and seller.
The tough part for brokers to digest is that the company, Edina Realty Inc., actually had a disclosure statement in its standard purchase and sale agreement. But the court ruled the disclosures were inadequate.
So what's the difference between the Edina disclosure statements and the ones commonly used in this state?
"The Edina disclosures were about three typewritten lines and ours are about eight or nine," says Robert Linz, a local real estate educator and investment advisor.
One confusing issue is that Edina apparently complied with a state statute on agency disclosure, and the judge did not explain how Edina failed to meet the standard.
Edina's situation includes two additional lawsuits including a petition for class-action involving sellers who had listed with Edina between 1986 and 1992. The outcome of these cases will influence the marketing of real estate throughout the country. The decision in the first case already has.
TASK FORCE TO TAKE UP ISSUE
The Washington Association of Realtors' Task Force on Agency will take up the dual-agency predicament and other issues when it meets Thursday in Bellevue. The group will attempt to draft a new state law that resolves dual agency (the practice of representing both sellers and buyers).
"The basic problem is that our agents say one thing and do something else," said Hugh Hawkins, a Bellevue real estate attorney and member of the Realtors' task force. "They are telling buyers, `we're really representing the seller, but we'll take care of you, too.' The agent's words and deeds must follow what was stated in writing."
Dual agency is not allowed in some states, including New Jersey and Hawaii. Linz, who gives seminars on agency and buyer brokerage, said true dual agency is not possible.
"It's an oxymoron," Linz said. "You can't provide agency responsibilities to buyer and seller at the same time." Those responsibilities include loyalty, confidentiality and full disclosure.
Washington State allows dual agency as long as it's disclosed (here's where Edina got into trouble) and all parties involved give their fully informed consent.
"We all know what consent means," Fred Barry, counsel for the Massachusetts Buyer Agent Association, told Real Estate INSIDER, a trade publication. "What we don't know is how much information the consumer requires to become informed."
WILL IT BE TOO MUCH?
Will the new disclosure proposals be overkill? Probably, yes, because informed consent means different things to different people. But brokers will want to be as lawsuit-proof as possible, given the ruling on agency disclosure in the first Edina case. Edina's problems could lead to being ordered to pay hundreds of millions of dollars in penalties - i.e. they could be put out of business.
"In a perfect world, all buyer-brokers would charge a flat fee or an hourly rate for their services - whether the deal closes or not," said Linz, who prefers to work under those guidelines. "It keeps things simple and clean."
One idea for Washington brokers would be be to adopt a law similar to Illinois' where dual agency is handled by the broker's designating specific agents to represent buyer and seller. Proponents and opponents are already gearing up for a court test - to the surprise of absolutely no one.
Tom Kelly is a private real-estate consultant. His column runs Sundays in the Home/Real Estate section. Send questions and comment to: Tom Kelly, P.O. Box 70, Seattle, WA 98111
