What If You're a California Listing Agent and You're Thinking About Representing the Buyer?

In California residential real estate, a dual agent—one who represents both the buyer and the seller—must navigate a minefield of fiduciary obligations and potential liabilities. Also, two agents working under same broker are also dual agents in a transaction. Below is a summary of the key liabilities and legal responsibilities:

Key Fiduciary Duties and Liabilities

1. Fiduciary Duty to Both Parties
A dual agent owes each party the duties of loyalty, confidentiality, honesty, and full disclosure. This means the agent must:

• Disclose Material Facts: Inform both the buyer and seller of any information that could affect their decisions.
• Avoid Conflicts of Interest: Balance competing interests without favoring one party over the other.

  

  Agent standing across from seller, buyer behind.
  

   
  

• Obtain Informed Consent: Secure written consent from both parties acknowledging the dual agency relationship.

2. Strict Disclosure Requirements
Under California Civil Code §2079.13, dual agents are required to provide a clear, written disclosure of their dual role. Failure to disclose—or inadequate disclosure—can lead to:

• Legal Claims: Breach of fiduciary duty, misrepresentation, or fraud.
• Disciplinary Action: Potential sanctions by the California Department of Real Estate.
  

3. Liability for Associate Actions
If the dual agent’s salespersons or broker associates act negligently or breach their duties, the supervising agent (and by extension, the brokerage) may be held liable under the principle that the duty owed by an associate is equivalent to that owed by the principal broker.

4. Negotiation and Confidentiality Pitfalls
The dual agent must be careful during negotiations:

• No Secret Profits: The agent must not use confidential information from one party to benefit the other.
• Neutrality in Negotiations: The agent should present offers and counteroffers without bias, ensuring each party gets a fair deal.
• A dual agent may not reveal to either party facts relating to the financial position, motivations, bargaining position or other personal information that may impact price, in addition to the restrictions already mentioned.
  

Dual agency in California residential transactions is legally permissible only when both parties are fully informed and provide written consent. A failure to adhere to strict disclosure and neutrality requirements can expose the dual agent to significant legal liabilities—including breach of fiduciary duty, misrepresentation, and potential disciplinary actions. By understanding and rigorously following these guidelines, a dual agent can mitigate risks and help ensure a fair transaction for both buyer and seller.

 

Julia Huntsman, REALTOR, Broker | http://www.abodes.realestate | 562-896-2609 | California Lic. #01188996