The Unrepresented Buyer and the Sellers' Bottom Line
Priya is a salesperson with Prairie Sky Realty in Regina. She has an exclusive seller's service agreement, signed August 1 for 120 days, to list Ken and Marta's four-bedroom house at 412 Willow Crescent for $639,000. The sellers have bought another home and need to close by September 30; they told Priya this in confidence and said they would accept $610,000 if necessary. On August 18, Devon, an unrepresented buyer, asks Priya to write an offer at $600,000 and asks, 'What is the lowest they will take?' Priya's brokerage policy permits dual agency with the broker's written approval. Priya has given Devon the brokerage's agency disclosure brochure but no written consent form. Devon says he does not want another agent and is willing to sign whatever is needed. The sellers have not been told that Devon asked Priya to represent him.
1. Can Priya act for Devon in this transaction? Explain the steps and any limits.
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Conclusion: Not yet. Priya cannot treat Devon as a client until the brokerage has made full dual-agency disclosure and obtained informed written consent from both Devon and the sellers, with broker approval.
Reasoning: Agency belongs to the brokerage, not to Priya personally. Prairie Sky Realty already represents the sellers. If Priya also represents Devon, the brokerage becomes a dual agent. Saskatchewan requires disclosure of what dual agency means, including that the brokerage cannot prefer either side and cannot disclose one party's confidential information to the other. Priya must explain that she cannot use the sellers' September 30 deadline or their $610,000 bottom line for Devon's benefit. Both parties should be encouraged to obtain independent legal advice. Devon's willingness to sign whatever is needed is not informed consent by itself. The sellers must also consent; their consent cannot be assumed from the listing agreement.
Practical steps: Prepare a written dual-agency disclosure and consent form, review it with both sides, obtain signatures, and get the broker's written approval. If either side refuses, Priya may provide only permitted customer services to Devon without an agency relationship, or refer him to another brokerage. She must not continue to act as if Devon is her client in the meantime.
2. How should Priya respond to Devon's question about the lowest price?
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Conclusion: She must not answer the question or hint at the sellers' bottom line.
Reasoning: The sellers' motivation and minimum acceptable price are confidential information obtained through the agency relationship. That duty continues even if the brokerage later becomes a dual agent. Dual agency does not permit Priya to use one client's confidential information to benefit the other client. Telling Devon that the sellers 'might take $610,000' would be a breach, and even a softer hint such as 'offer below list and see' could improperly use confidential information.
What Priya can do: Explain that she cannot disclose the sellers' position. She can help Devon prepare his own offer based on his budget, comparable sales, and his own inspection and financing conditions. She should encourage him to decide what the property is worth to him and to obtain independent advice. If Devon presses for inside information, Priya should document the request and repeat the limit. If she does not believe she can remain impartial, she should decline the dual agency rather than risk favoring one side.
3. What should Priya do if the sellers refuse to consent to dual agency?
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Conclusion: Priya cannot act for Devon as a client in this transaction through Prairie Sky Realty.
Reasoning: The brokerage already represents the sellers. Without the sellers' informed written consent, the brokerage cannot also represent Devon. Having a different salesperson at the same brokerage handle Devon would not cure the problem because the agency relationship belongs to the brokerage. Priya also cannot quietly provide buyer-agent services while calling Devon a customer; the scope of any permitted customer service must be explained in writing and must not include advocacy or confidential advice.
Options: Priya should tell Devon that she cannot represent him and offer to refer him to another brokerage. She may give him factual property information that is available to any buyer, but she must not negotiate for him, recommend an offer strategy, or disclose the sellers' confidential information. She should document the sellers' refusal and the referral. If Devon chooses another brokerage, Priya should be careful not to share anything about his plans with the sellers beyond what the seller-client is entitled to know about offers.