In-House Listing and an Unsigned Dual-Agency Consent
A brokerage holds an exclusive right-to-sell listing on a 1926 Colonial listed at $465,000. A buyer who signed an exclusive buyer-agency agreement with the same brokerage wants to see it. The agent emails the Connecticut agency disclosure and a dual-agency consent form. The buyer replies 'Fine-show me' but never signs; the seller has signed consent. At the showing, the listing agent mentions the seller has a corporate relocation deadline and 'will take anything over $430,000.' The buyer asks the agent to write a $420,000 offer and to keep the buyer's maximum confidential.
1. Can the agent prepare and present the buyer's $420,000 offer while the brokerage represents the seller? Explain the consent and representation structure.
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No-not as the buyer's advocate. Connecticut permits dual agency only with the informed written consent of both buyer and seller. The buyer's email 'Fine-show me' is not written consent to dual agency, so the brokerage cannot treat the buyer as its client while also representing the seller.
The brokerage could ask both parties to consent in writing to designated agency, with one licensee designated for the buyer and another for the seller. If the buyer will not consent, the brokerage may continue as the seller's agent only, treat the buyer as a customer, or refer the buyer to another brokerage. It should not draft the offer as the buyer's agent or negotiate on the buyer's behalf without the required consent.
2. How should the agent handle the seller's relocation deadline and price floor, and the buyer's maximum?
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The seller's relocation deadline and willingness to accept over $430,000 came from the seller side and are confidential. A dual agent may not use one party's confidences against the other, and even a designated buyer's agent should not use confidential seller information obtained through the brokerage. The agent should ask the seller what may be disclosed.
The buyer's maximum is also confidential and should not be revealed to the seller. If the agent is acting only for the seller, the agent must not advocate for the buyer or use the buyer's financial information to push the seller.
3. If the buyer refuses to sign any dual-agency consent, what lawful options remain?
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Lawful options: (1) the buyer signs a written dual-agency or designated-agency consent acceptable to both sides; (2) the buyer remains unrepresented and receives the required agency disclosure, with the agent acting for the seller only; (3) the buyer is referred to a different brokerage that can represent the buyer exclusively; or (4) the brokerage withdraws from one side if its agreements permit. The agent should document the disclosure and not collect compensation from both sides without the required consent.