|
Here are some Questions &
Answers concerning Agency representation as it relates to South
Carolina law.
Are you a Customer or a Client ?
When you choose to work with a real estate licensee, he or she
may not be "your" agent!
An agent owes certain duties to a client but has different
obligations to a customer. You must know whether you are a
customer or a client of a licensee in a real estate transaction
and that relationship must be established and disclosed prior to
beginning to work together.
Who is a Customer?
A customer is a person who seeks to buy or sell real estate, but
who does not establish an agency relationship with a licensee
and therefore, is not represented by a licensee as his or her
agent. As a customer you cannot expect the licensee to act as
your agent or to negotiate on your behalf. A real estate
licensee can, however, provide valuable market information and
services to assist you as a customer. A licensee is also
obligated by law to treat customers honestly, to disclose known
material facts about the property and to promptly present all
offers and counteroffers. When selling or buying real estate,
you may decide you don't need your own agent. The licensee may
be able to provide you as a customer with all the information
and assistance you require to successfully complete a
transaction. However, if you are a customer, the licensee's
primary loyalty is not with you. It is to his or her client. The
agent must convey all known information to his or her client,
such as the seller's urgency to move if he or she represents a
buyer/client or a buyer's willingness to increase an offer if he
or she represents a seller/client.
Who is a Client?
A client is a person who establishes an agency relationship with
and agrees to be represented by an agent in a real estate
transaction.
A seller becomes a client of a real estate company by signing a
formal listing agreement with a licensee associated with a
company. Prior to any transaction, this agreement must be in
writing and must clearly establish the terms of the agreement
and the obligations of both the seller and the licensee/company
who becomes the agent for the seller.
A buyer becomes a client of a real estate company by signing an
exclusive buyer agency agreement with a licensee associated with
a company. Prior to any transaction, this agreement must be in
writing and must clearly establish the terms of the agreement
and the obligations of both the buyer and the licensee/company
who becomes the agent for the buyer.
Who is an Agent?
An agent is the licensee who by mutual agreement will act on
your direction and represent your interest above all others in a
real estate transaction. In South Carolina, once an agency
relationship is created, the broker-in-charge of the company is
considered to be the agent of the client, and all licensees with
the company become subagents of the broker-in-charge
representing that same client.
Acting on your behalf, your agent will negotiate for you the
best price and terms in a real estate transaction. Your agent
owes utmost loyalty to you, the client, and pass on to you any
information he or she knows which might influence your decision
to buy or sell. You can rely on your agent to preserve
confidential information provided by you. You can expect to
receive timely accounting of money or property related to and
received during your relationship with your agent.
What is single agency?
When the Company represents only one client in the same
transaction (the seller or the buyer, it is called single
agency.
What is a dual agent?
In certain situations, a licensee acts as an agent for and may
represent the buyer and the seller in the same transaction
provided each has consented in writing prior to the transaction.
This is called dual agency since one agent represents both
parties and both remain clients of the company. The possibility
and consequences of such an occurrence must be explained to you
by the licensee.
Working with a dual agent is not the same as having your own
exclusive agent! For instance, when representing both a buyer
and a seller, the dual agent must not disclose to one party
confidential information obtained from the other party. Also, a
dual agent may not be the advocate for either party and cannot
negotiate for nor advise either as to the price or terms. It is
important that you discuss dual agency with the licensee in
order to understand the limits of representation which a dual
agent can provide. If requested by licensee, you must determine
whether or not you would be willing to modify your established
agency relationship and give your consent, thereby agreeing to
limited representation by your agent.
What is a designated agent?
In some situations, both the seller and the purchaser are
represented by agents of the same office. If this is the case,
the broker-in-charge of the office will designate one of the
agents as the agent for the seller, and another agent as the
agent for the purchaser. Each agent will act in the best
interest of their client and not share confidential information
with the other agent. The broker-in-charge remains a disclosed
dual agent for both clients, and ensures the assigned agents
fulfill their duties to their respective clients.
Do you want to be a customer or a
client?
Do you want only to receive information and assistance
(customer) or to be represented (client)?
To understand your options, discuss this with the real estate
licensee with whom you are working. It is important to you and
the licensee that your working relationship with the licensee be
established and acknowledged and that you are aware of the
services you will be provided. At your discretion, it may be
advisable for you obtain legal or other professional advice
which you feel necessary to protect your own interest.
This information is from the
consumer information brochure presented by the
S.C. Department of Labor, Licensing and Regulation Department
South Carolina Real Estate Commission.
|