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Who's representing you?

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If you're buying or selling a house, did your real estate agent explain the difference between a buyer's agent, a seller's agent, a cooperating agent and a dual agent?

No? Maybe?

It's the sort of thing that might sound like WSIGAC -- why should I give a carp -- but consumer advocates suggest paying attention. Agents in Maryland are supposed to give you a disclosure form to sign at your first appointment with them so you understand who they (and their bosses) are actually representing at the negotiating table.

Are they a seller's agent or a cooperating agent in the transaction? Then their "duty of loyalty" is to the seller alone, the state says. They can help someone else buy the house, but they're not representing that buyer -- surprising the heck out of some buyers.

If they're a buyer's agent in the transaction, they're representing the buyer and have a signed agreement from the buyer to show for it. A "presumed buyer's agent" is representing the buyer without a signed agreement and will need to get one before submitting any offers on property.

"Dual agency" happens when the buyer and seller in a single transaction end up being represented by agents working for the same real estate broker. Maryland law bars a single agent from representing both parties, but the agent's broker can do so, according to the Maryland Real Estate Commission.

John F. Sullivan, a Maryland agent who works only for buyers and thinks dual agency is fraught with conflicts of interest, is hoping the General Assembly passes a bill that would make the disclosure form disclose more -- bringing the state into a tug-of-war between a trade group for Realtors and the trade group for brokerages that represent buyers only.

He's planning to testify this week that "chronic misunderstandings about agent fiduciary responsibility have contributed to the foreclosure crisis both in Maryland and across the nation" -- namely that buyers weren't given good advice by agents about what they could actually afford, and thus did not have their best interests protected.

Senate Bill 644 would add the terms "exclusive buyer agent" and "exclusive seller agent" -- the intent is that only agents working for brokerages that just represent buyers could call themselves the former, and only agents at brokerages that just represent sellers could call themselves the latter, Sullivan said.

The bill would also require that consumers be given an explanation of what "single agency" means (the opposite of dual -- representing only the buyer or the seller in the same transaction) and what a "subagent" is (someone assisting the buyer but employed by the brokerage being used by the seller).

Oh, and the consent form a buyer and seller are supposed to sign if they end up with same real estate broker? It would be changed to say that "there will likely be a conflict of interest because the interests of the seller and the buyer are different or adverse" -- rather than the current "may be a conflict of interest" and "may be different or adverse." 

"If passed, these changes to the Real Estate Brokers Act ... would provide the consumer with all of their agency choices when selling or buying their home," Sullivan, an exclusive buyer agent who is vice president of Buyer's Edge Co. Inc., wrote in an email. "It would be the first of the 50 State agency disclosure statements in the country to provide the consumer with all their agency options including exclusive buyer, exclusive seller and most importantly single agency."

The Maryland Association of Realtors says thanks but no thanks. Mark Feinroth, director of regulatory affairs with the trade group, said the National Association of Exclusive Buyer Agents asked the state real estate commission to change the disclosure form last year. The commission declined. This bill seems to grow out of that request and "makes a big change in agency law that's really unwarranted," he said.

"We think this is an effort by the exclusive buyers' agents to have their business model shown as a preference in the process and in the form," Feinroth said. "They're certainly entitled to their business model ... but we don't think it's appropriate for any business model to be preferred in the statute. And we think that's really what they're asking."

Agency -- who's representing whom -- "is already the most difficult concept to train licensees in, and it's a very difficult concept to explain to consumers," Feinroth said. "I think this will make it even harder to understand."

The Maryland Real Estate Commission voted to oppose the bill. The executive director said through a spokeswoman last week that the commission wouldn't comment on the reasons until the hearing, which is scheduled for Wednesday at 1 p.m. in Annapolis.

Sullivan, the exclusive buyer agent, said it doesn't surprise him that the commission opposes it because a majority of the members are industry players, and the industry likes the disclosure form as is.

He is trying to get consumers to think twice about what type of agent to hire. He was president of the National Association of Exclusive Buyer Agents in 2009, when the group surveyed members about their transactions in the previous three years and then determined how many ended in foreclosure. It was 0.8 percent, less than half the rate of foreclosure nationwide, the trade group said.

Sullivan says clear disclosure would be better for sellers, not just buyers -- and for agents, too. This piece delves into the legal implications for agents when they purposely or accidentally breach their fiduciary duty.

What do you think?

Copyright © 2014, The Baltimore Sun
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