In a typical real estate transaction, buyers and sellers each have a licensed real estate agent to represent them. Realtors are legally obligated to work in the best interest of their clients, and when each party has a Realtor, everyone’s roles and loyalties are well established. Sometimes, however, one or both parties in a transaction (buyers and/or sellers) opt to represent themselves and forego the assistance of a Realtor. This can cause significant problems for everyone involved.
Unlike many industries, no written contract is required for a Realtor to represent a client. A verbal agreement between a buyer or seller and a Realtor is all it takes for a Realtor to become a client’s legal agent. In fact, even without an agreement, as soon as a Realtor starts giving advice about a real estate transaction, that Realtor can be considered a buyer or seller’s legal agent. Odd, but true. Once a Realtor is in the role of legal agent, he or she becomes responsible for many aspects of that client’s transaction, not just the ones advised upon.
This is why it is unfair to ask your friend who is a Realtor to advise you unless that friend is representing you in the transaction. Realtors are friendly by nature (or they don’t last very long in the real estate business). They want to help you, both because they’re nice and, candidly, because they’re probably hoping for future referrals. However, you are putting your friend in a terrible fix by asking for advice, because as soon as your friend advises you, he or she takes on economic and regulatory liability. Your friend can be sued or fined for giving advice if the transaction goes poorly.
Realtors who represent half of a transaction when the other party has no representation need to be really careful how they walk the tightrope between making a transaction go smoothly for their client and accidentally becoming the legal agent of the unrepresented party.
Here’s an example of how slippery the slope can be. If the unrepresented party asks a Realtor who they recommend to do a pest and fungus inspection and the Realtor provides three local contacts, the Realtor has not become that person’s legal agent. If instead the Realtor says, “Hey, I’ll see my favorite pest guy this afternoon, I’ll have him call you,” now we’re in a gray area. If the Realtor agrees to review the pest and fungus report with the unrepresented party once it’s done, the Realtor is clearly signing up to be that person’s legal agent.
Let’s consider the classic for-sale-by-owner (FSBO) situation. To avoid paying a Realtor’s fee, a homeowner puts his home on the market and plans to represent himself in the negotiation. Buyers who are represented by a Realtor fall in love with the property and make an offer. The Realtor representing the buyers wants everything to go smoothly for her clients, so she finds herself in an awkward position when the seller starts asking questions about the sales contract. It is in the best interest of her clients that the seller understands the offer, but as soon as the Realtor starts answering the seller’s questions, she may inadvertently be signing up to represent him as well as the buyers.
Realtors can also accidentally become legal property managers simply by being helpful. For example, if a property owner finds a tenant for her investment property and asks a Realtor for help negotiating the lease, that Realtor has legally become the property manager. If the property in question is later found to have black mold and the tenant gets sick, the Realtor could be liable for damages as a property manager who didn’t adhere to regulatory requirements.
If you’re a Realtor, protect yourself by educating friends and clients about your legal liability when it comes to giving real estate advice.
If you have questions about getting into real estate, please contact me at firstname.lastname@example.org or call (707) 462-4000. If you’d like to read previous articles, visit my blog at www.richardselzer.com. Dick Selzer is a real estate broker who has been in the business for more than 40 years.