The Open-House Buyer Who Wants the Listing Agent to "Just Write It"
Sarah, a salesperson with Harborview Realty, lists a $540,000 condominium in Jersey City. At the first open house, Priya tours the unit without an agent and asks Sarah to "write the offer for her." Priya has signed nothing. In an earlier private conversation the seller told Sarah, "we'd take $500,000 - we already bought in Bayonne and the bridge loan is killing us." Harborview's broker, Dale, also has a buyer-side agent, Luis, whose client might like the unit. Dale suggests Sarah "just represent both sides and keep it simple."
1. Priya has asked Sarah to write her offer. What disclosure obligations are triggered, and is dual agency available here?
Read the worked answer
First, the consumer information obligation. In a residential transaction the brokerage must deliver the consumer information statement at the first substantive contact - and a request to write an offer is plainly substantive. Priya must understand, before she says anything about price or terms, who the brokerage works for. Right now that answer is: the seller.
Second, dual agency in New Jersey is consent-based, in writing, from both sides. New Jersey does not use "designated agency," where two agents in the same firm each advocate for one side as if they were in separate firms. If Harborview represents both seller and buyer, the brokerage is a dual agent - including the version where Sarah serves the seller and Luis serves the buyer. Dale's idea that each agent can simply advocate for "their" side inside one firm does not match New Jersey practice.
What dual agency actually costs the parties: no advocacy, no use of one party's confidences against the other, and an obligation to be neutral on price and terms. Both parties must give informed written consent.
Practical answer: before any offer is drafted, identify the relationship, hand over the disclosure, and either (a) obtain written dual-agency consent from the seller and Priya after explaining the loss of advocacy, or (b) keep Sarah as the seller's agent and have Priya proceed unrepresented or with her own broker. Note also that New Jersey residential contracts carry an attorney review period - advise Priya to have counsel review anything she signs.
2. Can Sarah use the seller's $500,000 floor to help Priya? Explain the confidentiality reasoning and what Sarah should do instead.
Read the worked answer
No - not as the seller's agent, and not as a dual agent either.
As the seller's agent, Sarah owes the seller loyalty and confidentiality. The seller's motivation and reservation price are exactly the kind of information a seller's agent must protect. Using it to push Priya toward a higher number would be fine; using it to steer Priya's offer strategy - or hinting "they'll take less" - is a betrayal of the seller, and coaxing a lower offer from a buyer is disloyal to the person who hired her.
As a dual agent, Sarah's problem gets worse, not better: a dual agent may not use one party's confidences to the disadvantage of the other. She cannot tell Priya the floor, and she cannot quietly help Priya land at $500,000 while the seller believes she is advocating for $540,000.
What Sarah should do:
- Tell the seller privately that the buyer is unrepresented or that dual agency is on the table, and ask what the seller authorizes her to share.
- If dual consent is given, tell Priya plainly that the brokerage does not advocate for her price and that she should consider her own representation.
- If consent is not given, refer Priya to another brokerage or proceed with Priya unrepresented and give only factual information about the property - no opinions on value, no coaching on price.
- Document every conversation. The file is the defense.
3. If Priya refuses dual agency consent, what may Sarah still do, and what must she stop doing?
Read the worked answer
What she may still do: continue as the seller's agent; provide factual information about the property and the process; present Priya's offer to the seller; and, as a scrivener, put Priya's stated terms into a standard form at Priya's direction and forward it, with a clear written statement that the brokerage represents the seller only and that Priya should retain an attorney (consistent with the attorney review period).
What she must stop doing:
- Giving Priya advice or opinions - "you should offer more," "that's a strong price," "the seller will counter."
- Treating Priya as a client for loyalty or confidentiality purposes.
- Presenting herself, verbally or in advertising, in a way that leaves Priya believing she has an advocate.
Key judgment: the listing brokerage does not have to walk away from the transaction. It has to stop giving the appearance of representation. Put the non-representation in writing and confirm in the file that Priya was told to seek counsel. If Luis's buyer-client later wants to buy this unit, the analysis repeats: the firm would be a dual agent and needs both written consents - the internal team structure is not a workaround.