Nine Showings, No Signature: Agency Status and the Confidential Ceiling

1. Conduct alone does not create agency, but it creates exposure. Nine showings and Trevor's assumption do not equal a written buyer's agency agreement. They do create a realistic ostensible-agency argument if Trevor later claims he believed Rosa worked for him. Assume the record will be read against Rosa if there is no document.

2. The conflict is structural. Mesa Verde Realty is already the seller's agent. Rosa cannot simply 'be Trevor's agent' without the Delgados' informed written consent to an in-house dual representation, and the firm's written agency-disclosure document must be presented to Trevor at the earliest practicable point - before he reveals confidential information, not after.

3. Choose one path in writing.

• Buyer's agent: requires written consent from both the Delgados and Trevor, plus a written buyer's agreement. Neither party may be given the other's confidential information.
• Unrepresented customer of the listing brokerage: Trevor signs an acknowledgment that the firm represents the seller and that Rosa's loyalty runs to the Delgados. She still owes Trevor honesty and no misrepresentation.
• Referral out: safest if Trevor truly needs advocacy.

4. Never let the showing happen on an undocumented handshake. Verbal reassurance ('don't worry, I'll take care of you') is exactly what creates the implied agency claim later.

Warn before he speaks. The single most important sentence is said before Trevor names numbers: 'I represent the seller, so anything you tell me about price or motivation may be shared with them and cannot be kept confidential.'

Then the analysis follows from the path chosen in Task 1:

If Trevor is a customer (no agency): His ceiling and pre-approval are not protected. Concealing a ready, willing, and able buyer's true capacity is a breach of Rosa's duty to the Delgados. She may pass the information along.

If Trevor is a client (written consent obtained): The ceiling becomes confidential client information. Rosa may not tell the Delgados, may not hint at it, and may not push Trevor above what he authorizes in the offer. She also cannot advocate the Delgados' $400,000 floor at Trevor's expense.

Two things she may not do either way:

• She may not use the $412,000 ceiling to manufacture a fake competing offer or a phantom bidder. That is misrepresentation, not negotiation.
• She may not use the $425,000 pre-approval to frighten Trevor into offering more than he wants; the pre-approval is a lending document, not a valuation.

Practical note: The Delgados' $400,000 floor is itself confidential seller information that Rosa should not reveal to Trevor without the Delgados' authorization.

Compensation does not create agency, and agency does not set compensation. They are separate questions the exam blends deliberately.

The fee is fixed by the listing. The exclusive-right-to-sell establishes a 6% fee. If the firm lawfully represents both sides with the written informed consent of the Delgados and Trevor, it is still owed only the 6% it contracted for. It cannot collect 6% from the seller plus a separate buyer-side fee from Trevor unless there is a separate, fully disclosed written agreement with Trevor authorizing it - and even then, the total must be transparent to all parties.

Payment mechanics:

• The fee is paid to the brokerage, never to Trevor or any unlicensed person.
• The allocation between the house and any cooperating broker must be in writing before closing.
• The firm's gross receipts are subject to New Mexico gross receipts tax; how that is handled should be settled in the listing agreement up front, not argued about at the closing table.

Dual-agency discipline: With two clients, Rosa cannot negotiate strategy for one against the other. She must present, transmit, and account - objectively - and both parties must understand in writing that they have given up full advocacy.