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IN Real Estate: Agency and Fiduciary Duties

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Agency and Fiduciary Duties

Creation and parties

Agency is created by express agreement, implication, estoppel, or ratification. In Indiana, a written agency agreement is required before a licensee represents a party, and the agency belongs to the brokerage, not the individual salesperson. Always identify the client (represented) versus the customer (not represented).

Fiduciary duties

Remember obedience, loyalty, disclosure, confidentiality, accounting, and reasonable care and skill. Loyalty means no secret profit and no self-dealing. Disclosure means all material facts. Confidentiality continues after the relationship ends, but it does not cover facts known to everyone, information the law requires you to disclose, or information the principal authorizes you to share.

Indiana's limited agency

Indiana's term for dual agency is "limited agency," and it requires the written, informed consent of both parties. Once limited agency exists, the licensee may not advocate for one side over the other. Undisclosed dual representation is a license violation as well as a breach of duty. Other states' labels (designated agency, transaction broker, subagency) may appear as distractors - answer using Indiana's framework.

Traps

The buyer's agent must not reveal the buyer's top price to the seller. A listing agreement is a contract for services, not a transfer of title. Commissions are always negotiable. Termination occurs by performance, expiration, mutual agreement, revocation, or death/incapacity, but confidentiality can survive.

Rule of thumb

Name the principal first, then ask which duty the question is testing - loyalty, disclosure, or confidentiality - and remember the duty runs to the client, never to the customer.