Same-Office Listing and a Trustee Who Refuses Dual Agency
You are a salesperson with Maple Ridge Realty in Rutland. In March, buyer Dan Kessler signed an exclusive buyer agency agreement with you and your firm. In April you locate a duplex that fits his criteria - and it is listed by your own office. Your colleague Karen is the listing agent for the seller, the estate of Helen Pratt, and the trustee has told Karen in writing that the estate "will not agree to any dual agency or shared representation of any kind." The agency section of your buyer agreement states that the firm may use designated agency with the parties' written consent. Dan wants to see the duplex this afternoon and asks, "What did the estate turn down last year, and how low will they go?"
1. Before you show the duplex or discuss terms with Dan, what must happen inside the firm - and what are your options if the trustee holds firm?
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Disclose, then get written consent - or get out of one side.
- Vermont requires the brokerage relationship to be disclosed in writing to all parties at the earliest practicable time, and confirmed before any written agency agreement. Dan already has that; the trustee must also receive the written disclosure now that the firm has a client on the other side.
- The firm is not automatically a dual agent. Under Vermont's designated agency framework, the firm may assign you to represent Dan and Karen to represent the estate, but only with the written consent of both parties. That consent must be obtained before you provide services to Dan on this property.
- The trustee has already refused. Without consent, the firm cannot represent both sides in any form - designated or dual. The firm must withdraw from one relationship. In practice the firm usually keeps the listing it already has and either releases Dan from the buyer agreement or serves him as an unrepresented customer, with a written acknowledgment that he is a customer and that the firm represents only the seller.
- Do not show the property as Dan's agent in the meantime; a showing is a service.
- Practical step: get the trustee's position confirmed in writing in the file, then have your broker decide which side to keep and document that decision.
2. Dan asks how low the estate will go. Separately, Karen asks you for Dan's maximum. How do you handle both questions?
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Refuse both, and explain why in terms of duty, not manners.
- A licensee owes confidentiality to the client. The estate's motivation, bottom line, andany prior rejected offer are the seller's confidences, held by Karen. You may not ask Karen for them or repeat them to Dan, even casually.
- Dan's ceiling is your client's confidence. You may not disclose it to Karen or the seller. Vermont's agency statute does not let a licensee reveal one party's confidential information to the other side, and a designated-agency arrangement does not create a channel between the two licensees.
- What you can do: convey offers and counteroffers, share material facts about the property (condition, zoning, known defects), and - with Dan's express permission - tell Karen something like "Dan is pre-approved to $400,000." Permission should be documented.
- Coach Dan instead: comparative market analysis, absorption, and the estate's likely incentives are analysis, not disclosure of confidences.
3. Dan says, "Just have Karen write my offer too - one agent, one commission, simpler." What is your response?
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No - that would be dual agency by a single licensee, which the trustee has already refused.
- One licensee representing both buyer and seller is dual agency. Vermont permits it only with the informed written consent of both parties. The trustee's written refusal ends the discussion; Karen cannot "just write it."
- Karen drafting Dan's offer would also put her in the position of advising an adverse party and would create exactly the confidentiality conflict the trustee is trying to avoid.
- Alternatives: (1) Dan submits his own written offer, (2) Dan's attorney drafts it - routine in Vermont, where attorneys are commonly involved in drafting and closings, (3) the firm releases the listing or the buyer and one side is represented elsewhere.
- Also correct the assumption: a single commission does not necessarily mean a better price for Dan, and no reduction should be implied unless the seller agrees to it in writing.