Agency Relationships, Fiduciary Duties, and Representation Agreements
Establishing the relationship
Maine requires licensees to disclose in writing, at the first substantive contact, whom they represent, using the Commission-prescribed agency disclosure. Actual representation (seller agency, buyer agency) is created by a written brokerage agreement; the disclosure alone does not create an agency. Disclosed dual agency requires the informed written consent of both parties. Subagency is largely obsolete in Maine practice and should never be assumed.
The fiduciary duties
Remember OLD CAR: Obedience (to lawful instructions), Loyalty, Disclosure, Confidentiality, Accounting, and Reasonable care and skill. Confidentiality survives termination of the agreement. A customer is entitled to honesty, disclosure of material defects, and fair dealing, but not to advocacy or confidentiality.
Traps: the listing agent who receives a buyer's financial confidences and is expected to keep them confidential (they must be shared with the seller); implied agency from a single showing; dual agency created without written consent; assuming fiduciary duties end at closing.
Worked example: A buyer touring a listing tells the listing agent, 'Don't tell the seller, but we'd pay $40,000 over asking.' The agent represents the seller. Loyalty and disclosure require the agent to relay that information; the buyer should have been advised to obtain buyer representation before sharing it.
Rule of thumb: no written agreement, no agency - but the disclosure obligation exists either way.