The Open House That Turned Into an Undisclosed Agency

Starting point: Under Maryland brokerage law, a licensee must disclose in writing whom she represents before providing brokerage services, and must have a signed written brokerage agreement before acting as the client's agent. Dana has neither.

Therefore:

• Until a written buyer-broker agreement exists, Dana is not Priya's agent. Dana has been providing services while her only written relationship is with the seller of 214 Harborview - so her fiduciary duties (loyalty, full disclosure of known facts about the buyer's negotiating position and motivation) arguably ran to that seller.
• Telling Priya "I'm working for you" is an inaccurate oral representation of the relationship, which is itself a licensing problem independent of the paperwork.

What Dana must do now: Stop and have an honest sit-down. Disclose in writing that Dana represents the seller of 214 Harborview and the sellers of the other listings she showed. Then either (a) execute a written buyer-broker agreement with Priya so Dana becomes Priya's agent going forward (and disclose any compensation arrangement that could create a conflict), or (b) confirm in writing that Priya is unrepresented and that Dana can only provide ministerial help.

Exposure: Priya may have disclosed motivation and finances believing Dana was her advocate; Dana may have already breached a duty to her own seller. The broker bears supervisory responsibility for the salesperson's conduct and the missing paperwork.

Dana's broker may act as a dual agent, but only with the informed, written consent of both the buyer and the seller - and only if the brokerage's written brokerage agreements and disclosures contemplate it. If either party declines, the brokerage must assign another licensee to one side or one party must go elsewhere.

Mechanics:

1. Before any offer is written, both Priya and the seller sign a consent-to-dual-agency disclosure explaining that the brokerage now represents both parties and that the agent cannot advocate exclusively for either.
2. Dana's role shifts from advocate to facilitator - she presents and transmits information to both sides.

What Dana may no longer do:

• Tell the seller Priya will pay more than list, or tell Priya the seller is desperate and will take less - no sharing of one party's negotiating position, motivation, or price ceiling with the other.
• Give either party advice that disadvantages the other (e.g., "don't bother with an inspection").
• Recommend specific price terms to one side in a way that trades on information from the other.

Dana may still disclose known material defects (that duty is not suspended), handle paperwork accurately, and recommend both parties obtain their own legal and inspection advice.

Yes, it is a problem. Maryland advertising rules require that advertising by a licensee identify the brokerage, not merely a team name. A team may advertise under its own name only when the licensed brokerage name appears as well in a way that is clear and conspicuous, so a reasonable reader connects the team to the broker. Six-point type in a footer is unlikely to be considered conspicuous, and a phone number with a team name alone invites the public to believe the team is the brokerage.

Responsibility: The broker (supervising broker) is responsible for the acts of affiliated licensees and must establish and enforce written advertising procedures; team advertising typically must be reviewed and approved by the broker before use. So the fix is not only Dana's - the broker should pull the flyers, correct them, audit other team materials, and document the review. A pattern of noncompliant advertising is a disciplinary matter for the brokerage and for individual licensees, and can also create an agency-misrepresentation problem with consumers who call the number expecting an independent brokerage.