Dual Agency in Georgia

Hank Miller Team

Dual agency in Georgia – Georgia law allows both parties to agree to have one agent or broker represent them in a real estate transaction at the same time. In other words, the agent or broker has a client relationship with all parties to the transaction without acting in a designated agency capacity. In these situations, neither party is exclusively represented by a designated real estate agent. This type of brokerage relationship is called “dual agency”.

What? Let that rattle around for a bit…

A “client relationship” includes the expectation of maintaining client confidence in all matters of the transaction as well as data analysis, suggesting courses of action, contract prep and much more. So how is a single agent able to do that for both buyer and seller? They’re not.

Yet and still, some buyers insist on not utilizing a buyer’s agent to represent them and some sellers allow buyers to work with their listing agent – well their former listing agent. The buyer wants to spend the least amount of money on a home; the seller wants to capture the highest price possible, how can either benefit? The agent however, collects both ends of the commission, so there is that. Dual agency is especially common with new construction – either due to a lack of understanding or the misguided notion that the buyer will “save money” or get a “rebate”. There are a number of important reasons to have a buyer’s agent when buying  new home, representation is just one of them. The bottom line is that with dual agency there is one clear and consistent winner; the agent.

How can one agent effectively represent a buy and seller? The buyer wants to pay as little as possible, the seller wants them to pay as much as possible.  How can an agent be an advocate for both sides during negotiation, with the inspection, appraisal, survey…? Only the agent wins with dual agency.

The most likely place a prospective buyer will encounter dual agency is at an open house, whether for a previously owned home or new construction. The agent on site represents the seller, not the buyer walking in. With new construction, builders use their own representatives and their own documents when buyers come calling. Buyers need to be educated and should not count on having the 3 percent commission credited to them because it won’t happen.  There is no savings, the developer pays a set commission to the listing broker regardless of buyer representation. Use a buyers agent, there is almost always no cost to the buyer!

Georgia law allows real estate brokers to act as dual agents if they first get the written consent of both parties. The written consent must contain the following:

  • a description of the types of transactions in which the licensee will serve as a dual agent;
  • a statement that as a dual agent, the licensee represents two clients whose interests could be different or even adverse;
  • a statement that the dual agent will disclose all adverse material facts regarding the transaction known to the dual agent to all parties to the transaction except for information that is made confidential by request of another client and that is not allowed or required by law to be disclosed;
  • a statement that the licensee will disclose to each client in the transaction the nature of any material relationship the licensee or his or her broker have with other clients in the transaction other than incidental to the transaction;
  • a statement that the client does not have to consent to the dual agency; and
  • a statement that the client’s consent has been given voluntarily and that the client has read and understood the brokerage engagement agreement; This special consent is required because of the potential for conflicts of interest in dual agency transactions.

Dual agency has been outlawed in four states, ten others have it under consideration. Is it legal, yes. Is it smart? Does that question need to be asked? ALWAYS have independent representation, ALWAYS.  Read about brokerage relationships in Georgia