The Relocation Deadline and the Consent Form Nobody Signed
Coastal Realty Group lists a 3-bedroom Cape in Brunswick at $525,000. The listing agreement says the brokerage may act as a disclosed dual agent if both parties consent in writing. Two weeks later Dana, a licensee in the same brokerage, brings her own buyer clients, the Whitcombs, to a showing. They sign the brokerage's agency disclosure form but not the dual-agency consent form. Mid-showing Mr. Whitcomb asks, “The sellers are relocating, right? What's the lowest number they'd take?” Dana knows from the listing file that the sellers must close in 45 days to meet a relocation deadline and would accept $485,000. Her managing broker is unreachable, and the Whitcombs are drafting an offer at $470,000.
1. What may Dana say in response to Mr. Whitcomb's question, and what must be resolved before anything further is discussed?
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She cannot answer the question. The relocation deadline and the $485,000 acceptable price are the sellers' confidential information. Dana's brokerage is the seller's agent; the Whitcombs are customers of the brokerage until a written agency relationship is created.
Key distinctions to apply:
- Disclosure ≠ consent. Signing an agency disclosure form acknowledges who represents whom. It does not authorize dual agency. Maine allows a brokerage to act as a disclosed dual agent only with the written, informed consent of all parties.
- No consent, no dual agency. Until both sellers and both buyers sign the consent, Dana owes the sellers full loyalty and confidentiality and may not share their motivation or bottom line.
- What she can say: market facts, public record information, closed comparable sales, condition information from the listing, and a plain statement that she is not able to discuss the sellers' negotiating position.
Practical script: “I can't discuss the sellers' position - I represent them. I can pull closed sales in the neighborhood so you can build your own number, and if you'd like me to represent you personally, we need to talk about that in writing before I say anything else.”
She should also notify her managing broker as soon as possible; a confidential-information question on a live listing is not something to sit on until the broker returns.
2. The Whitcombs ask Dana to represent them on this purchase. What must the brokerage do, and how do Dana's duties change if dual agency is consented to?
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Steps to become a lawful disclosed dual agent:
- Obtain written informed consent from the sellers (the listing agreement's blanket authorization is a starting point, but the consent must be specific to this transaction and these buyers) and from the Whitcombs.
- Put the representation in writing - a buyer agency agreement with the Whitcombs - and make clear in the consent document which licensee represents which party and that the brokerage's fee may come from both sides.
- Explain the reduced level of service in plain language before signatures: no advocacy for either side on price or terms, no sharing of one party's confidential information with the other.
- Deliver copies to both parties and retain the file.
What changes for Dana (and what does not):
- She may no longer give either side negotiating advice that disadvantages the other, and she cannot use the sellers' 45-day deadline as leverage for her buyers.
- She still owes honesty, disclosure of material facts, accounting, and reasonable care to both.
- She must present all offers and counteroffers promptly and objectively, and must not steer either party to inspectors, lenders, or attorneys in a way that favors one side.
- She should advise both parties to seek independent legal and tax advice on the contract.
If either side refuses consent: the brokerage must pick a side. The cleanest resolution is for the Whitcombs to be referred to another brokerage (or to proceed unrepresented as customers) before any offer is written. Proceeding without consent is an undisclosed dual agency - a licensing violation regardless of whether anyone is harmed.
3. Before the offer is written, the seller tells the managing broker, “Don't bother us with anything under $480,000.” How should the brokerage handle that instruction?
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Take the instruction in writing, but do not treat it as a license to withhold offers.
- A seller may lawfully instruct the brokerage about how to handle low or nuisance inquiries, but a blanket refusal to transmit written offers conflicts with the duty to submit offers promptly and with the obligation to keep the seller fully informed. The safer course: reduce the instruction to writing, confirm the seller understands the brokerage will still transmit any written offer received, and log what was transmitted and when.
- In a dual-agency setting this is more sensitive, not less. Dana now has buyer clients in the same file. Suppressing a $470,000 offer from her own buyers because the seller said “don't bother me” creates both a fiduciary problem (the buyers' offer never reaches the decision-maker) and a fair-dealing problem.
- Present the $470,000 offer with the reasoning and the comps, note that it is $55,000 under list, and let the seller decide. A rejected offer is the seller's call; an undelivered offer is the licensee's failure.
- Document the seller's instruction, the delivery of the offer, the seller's response, and any advice given. If the seller continues to insist on screening offers by price, escalate to the managing broker and, if necessary, seek guidance from the Commission or counsel before the next offer arrives.