Agents - Who's Working For You?
Dolf & Anzie Witlox • July 13, 2018
In real estate, there are different forms of agency relationships. Before an agency is established in writing, an agency relationship may be established by the actions of the individual parties. If it walks like a duck and talks like a duck it might be legally defined as a duck, but usually, any relationship before a signed agreement is more likely to be classed a “customer relationship.”
A customer relationship is generally defined as the agent owing a duty of honesty and reasonable performance, but is not under contract to perform as an agent. All agency agreements define the specific performance required of the agent, how the agent is to be compensated for that performance and the responsibilities of all parties.
The different kinds of written agency that are available are:
1. Seller's Agent
When a real estate company is a “seller's agent,” it must do what is best for the seller of a property. A written contract, called a listing agreement, establishes seller agency. It also explains services the company will provide, establishes a fee arrangement for the REALTOR®'s services and specifies what obligations a seller may have. A seller that enters into a non MLS® Exclusive Listing Agreement has great flexibility in the terms and conditions of the contract. A seller entering into a MLS® Listing Agreement has somewhat more limited flexibility being required to conform to the standardized rules and regulations of the MLS® system. A seller's agent must tell the seller anything known about a buyer. For instance, if a seller's agent knows a buyer is willing to offer more for a property, that information must be shared with the seller. Confidences a seller shares with a seller's agent must be kept confidential from potential buyers and others.
Although confidential information about the seller cannot be discussed, a buyer working with a seller's agent can expect fair and honest service from the seller's agent and disclosure of pertinent information about the property.
2. Buyer's Agent
A real estate company acting as a "buyer's agent" must do what is best for the buyer. A written contract, called a Buyer Agency Agreement, establishes buyer agency. It explains services the company will provide, establishes a fee arrangement for the REALTOR®'s services and specifies what obligations a buyer may have. Typically, buyers will be obliged to work exclusively with that company for a period of time.
The buyer agency contract is a contract between an agent and a client and is usually based on the Ontario Real Estate Association’s Buyer Agency Agreement. This contract can be modified by written agreement of both parties to their satisfaction. There are no MLS® requirements for buyer contracts as there is no Buyer MLS® system in place at this time. Confidences a buyer shares with the buyer's agent must be kept confidential.
Although confidential information about the buyer cannot be disclosed, a seller working with a buyer's agent can expect to be treated fairly and honestly.
3. Dual Agent
Occasionally a real estate company will be the agent of both the buyer and the seller. The buyer and seller must consent to this arrangement in their Listing and Buyer Agency Agreements. Under this “dual agency” arrangement, the company must do what is best for both the buyer and the seller. Since the company's loyalty is divided between the buyer and the seller who have conflicting interests, it is absolutely essential that a dual agency relationship be established in a written Agency Agreement. This agreement specifically describes the rights and duties of everyone involved and any limitations to those rights and duties.
Current legislation in Ontario deems all sales representatives and associate brokers working for one brokerage company, no matter how small or large, to be the same agency. This automatically puts all buyers under contract with any representative from that company, who are interested in any of that companies’ listings, in a Dual Agency situation for those listings.
Who's working for you?
It is important that you understand who the REALTOR® is working for. For example, both the seller and the buyer may have their own agent which means they each have a REALTOR® who is working for them.
Or, some buyers choose to contact the seller's agent directly. Under this arrangement the REALTOR® is working for the seller, and must do what is best for the seller, but still may provide valuable services to the buyer.
If the seller and the buyer have the same agent, this is dual agency and the REALTOR® is working for both the seller and the buyer.
A REALTOR® working with a buyer may even be a "sub-agent" of the seller. Under sub-agency, both the listing agent and the co-operating agent must do what is best for the seller even though the sub-agent may provide many valuable services to the buyer.
Sub agency is created when a buyer chooses not to make a contract with a buyer’s agent and indicates in writing that they would prefer the agent they are dealing with to be the agent of the vendor and for them (the buyer) to have "customer status" only with the agent they are dealing with.
Code of Ethics
REALTORS® believe it is important that the people they work with understand their agency relationship. That's why agency disclosure is included in a self-imposed Code of Ethics which is administered by the Real Estate Council of Ontario. The Code requires REALTORS® to disclose in writing the nature of the services they are providing, and encourages REALTORS® to obtain written acknowledgement of that disclosure. The Code also requires REALTORS® to enter into a written agency agreement with any sellers or buyers they are representing.
REALTORS® are governed by the legal concept of "agency." An agent is legally obligated to look after the best interests of the person he or she is working for. The agent must be loyal to that person. A real estate company may be your agent – if you have clearly established an agency relationship with that REALTOR®. But often, you may assume such an obligation exists when it does not. REALTORS® believe it is important that the people they work with understand when an agency relationship exists and when it does not -- and understand what it means.
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