The Listing Agent's Own Buyer: Consent, Secrets, and Neutrality
Priya, a sales agent at Wasatch Sky Realty, listed 1247 Emerson Ave for $585,000 on a six-month exclusive agreement paying 3% to each side. Two weeks later her buyer-client Marcus, whom she has represented for a month under a signed buyer-broker agreement, wants to write an offer on that same property. In showing appointments Marcus told Priya, 'I'll go to $590,000 but not a penny more.' The seller, who is mid-divorce and needs a fast 30-day close, asks Priya, 'Just tell me - what's the most he'll pay? He's pre-approved to $620,000, isn't he?' Priya's managing broker is traveling and unreachable for two days. Marcus has not signed an offer yet, and the seller does not know Marcus is Priya's client.
1. What are Priya's agency options, and what must be in place before Marcus signs an offer?
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Options.
- Limited agency (dual agency) with the written informed consent of both the seller and Marcus before an offer is written. Utah permits limited agency, but it must be disclosed and consented to in writing, and each party must understand what is lost (full advocacy and undivided loyalty) and what remains (confidentiality, honesty, accounting, reasonable care and skill).
- Represent only one side - stay the seller's agent and have Marcus represented by another licensee in the firm or at another brokerage.
- Refer Marcus out entirely if consent cannot be obtained.
Key judgment. Priya cannot drift into limited agency by default or by silence. Until consent is signed, she is the seller's agent and owes Marcus honesty and fair dealing but not advocacy - she must say so out loud. Her managing broker's absence is not an excuse: the firm should have an associate broker or a written policy to obtain consent, and Marcus must be told promptly, before he drafts, that the representation is changing.
2. Which of the three facts - Marcus's $590,000 ceiling, the seller's divorce and 30-day deadline, Marcus's $620,000 pre-approval - may Priya share, and with whom?
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As a limited agent she may not disclose either party's confidential information to the other. That means:
- Marcus's $590,000 ceiling stays private. She cannot signal, hint, or coach the seller to 'push toward $589,000.'
- The seller's divorce and deadline stay private. She cannot tell Marcus that a fast close or an especially low offer will be welcomed.
- The pre-approval amount is Marcus's financial information. She should neither confirm nor correct the seller's guess, and should not volunteer that the pre-approval exists.
What she can do: give each party neutral market data, explain the forms and the process, disclose material facts about the property and its condition, and tell each side plainly that she cannot reveal the other's confidential information. The pre-approval letter is Marcus's to release, not hers. Strength-of-position information is where limited agents most often destroy a transaction and a license.
3. The seller asks Priya to draft the counteroffer to 'get every dollar,' and Marcus asks her to 'protect me on inspections.' How should she handle both requests?
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Priya may perform ministerial/clerical acts for both sides - filling in the REPC, transmitting offers and counteroffers, delivering notices and deadlines. She may not advocate or strategize for one party against the other. Drafting a counteroffer engineered to extract every dollar from Marcus, or privately coaching Marcus to waive inspections because the seller needs a clean, fast close, crosses that line.
She should: (a) tell both parties, in writing if possible, that she is neutral and cannot advise either on negotiation strategy; (b) recommend each obtain independent advice - an attorney, a lender, or a different licensee; (c) present the counteroffer and the inspection options neutrally, explaining what each contingency does; (d) if either party wants real advocacy, arrange for another licensee to take that side. Documenting that conversation protects Priya, her broker, and both clients.