There is a Big Difference Between Selling Your Own Listing and Dual Agency

J Philip Faranda February 24, 2010

One of the things I have noticed in the ongoing debates on Dual Agency in Agent Genius, Active Rain and other industry forums is the near universal presumption that if an agent sells a home they have listed to their own buyer that it somehow automatically constitutes dual agency. While I can only speak of how it is where I am licensed here in New York (and Connecticut), that should not be the case. 

Simply put, dual agency is when a licensee represents two clients in one transaction. Two clients. Two separate parties that have hired that agent. It takes more than prancing into an open house or calling on a yard sign and seeing a house to make a consumer a client. Think of what you go through to get a listing. There is often quite the mating dance, cultivating a client over a period of weeks, months, and sometimes years before they sign a listing agreement and hire you to sell their home. You are then their fiduciary. This is a big deal. It is not casual, nor is it entered lightly. 

Now, after going through all that, you might then have a casual looker decide to throw out an offer after knowing you all of a half hour or half day. To represent them as a client in the transaction on your listing really isn't dual agency as much as it is throwing your sellers under a bus in my view. How does seeing the house with you and deciding they want it make them a client? They are a customer! Big difference! You owe them fairness and honesty. But they aren't clients. Moreover, if you agree to dual agency to induce them to buy, you really aren't working for them or the seller, you are working for yourself via the convenience of semantics.

Even if you are fantastic at selling your own listings, dual agency should be incredibly rare. It might occur if one of your listings decide to buy another, but unless you are in a small, insulated town or area, what are the odds of that happening? It might present itself if you get a new listing that is the perfect match for a long standing buyer client, but that too is relatively rare. 

I'll save my opinion of dual agency for another post. An opinion is one thing anyway. But the facts- the very conditions of what constitutes dual agency- are so muddied up that I had to chime in before delving into the subject any deeper. Clients are one thing, and customers are another. Knowing the difference would yield far more accuracy in the ongoing discourse on this controversial subject. 

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