The Buyer Who Wants the Listing Agent to 'Tell Me the Real Bottom Line'
Marcus holds the listing on 118 Alder Court at $329,000. At the listing appointment the seller told him, in confidence, that she would accept $295,000 and needed to close in 30 days because of a job transfer. Two weeks later, buyer Priya calls Marcus from the yard sign and asks for a showing. During it she says, 'I know you work for the seller, but if you'll tell me the real bottom line and represent me too, we both win.' Marcus's broker has a written company policy permitting designated agency, and dual agency with written consent. Priya has signed nothing, and Marcus has given her no brochure or written disclosure.
1. At the showing, what is Marcus's relationship to Priya, and what must happen before he can act for her?
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Priya is a customer, not a client. Nothing Marcus does at the showing creates agency.
- Under Georgia's brokerage relationship statute, a client relationship is created only by a written brokerage engagement, signed by the party to be charged. No writing, no agency - regardless of how much help Marcus gives her.
- Before or at first contact Marcus must deliver the brokerage relationship disclosure (the 'Working with Real Estate Agents' brochure) and disclose in writing that he represents the seller. He has done neither, which is itself a problem.
- As a customer, Priya is entitled to honesty, fair dealing, and accurate information about the property - but Marcus does not advocate for her, does not negotiate on her behalf, and does not advise her on price or strategy.
- If she wants representation, she signs a buyer's brokerage engagement with Marcus's firm. Only then does the dual/designated agency question arise, and dual agency requires the written consent of both parties and disclosure in the engagement documents.
2. May Marcus tell Priya the seller would take $295,000? What changes if the seller consents in writing to dual agency?
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No - not even with consent to dual agency.
- The seller's bottom line, her transfer deadline, and her urgency are confidential information protected by the duties of loyalty and confidentiality. Those duties survive the transition to dual agency; a dual agent is neutral, not a switchboard between the parties' confidences.
- Consent to dual agency is consent to representation of both sides, not consent to disclose my negotiating position. Disclosing the $295,000 number would require separate, informed, written authorization from the seller - and even then it is a bad idea, because it converts a neutral role into advocacy for the buyer.
- In a dual agency Marcus also may not advocate for either party or negotiate terms favorable to one side. That is a real loss of service to a seller who hired him for advocacy.
- The legally safe path: Marcus says nothing about motivation or price floor, tells Priya the list price and the facts about the property, and refers her to her own representation.
3. Design a compliant path forward for Marcus and his broker.
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Sequence and rationale:
- Deliver disclosure now. Provide the brokerage relationship brochure and a written statement that the firm represents the seller, before any further substantive conversation with Priya.
- Offer designated agency. Have Priya sign a buyer's brokerage engagement with the firm, and appoint a different licensee in the firm as her designated agent. Designated agency exists precisely so that the seller's confidences stay with Marcus and the buyer's designated agent is not charged with them.
- Document the information wall. Both the listing and buyer engagements must authorize designated agency; the broker-in-charge should document in the file that the seller's confidential information was not shared and that each designated agent represents only their own side.
- Do not let Marcus be both. If Marcus were appointed as Priya's designated agent, the firm would effectively be forcing him to hold and suppress the seller's confidences in an advocacy role - a conflict that undercuts the entire arrangement.
- Fallbacks. If the firm will not use designated agency, Priya can remain an unrepresented customer or engage a different brokerage. Marcus may not negotiate, advise on price, or draft terms for her as a customer.
- Broker supervision. The broker-in-charge - not Marcus - should confirm the policy in writing, since Marcus has a personal stake in the outcome.