If you decide to go directly to the listing agent on a property in which the listing agent is a fiduciary to the sellers, you are simply a customer, and you are “on your own.”
When a listing agent assists an unrepresented buyer, there are important limits to what the agent can do because the agent’s primary duty is to the seller. Here are the key limits for a listing agent in such a scenario:
1. No Fiduciary Duty to the Buyer
The listing agent’s fiduciary duty is solely to the seller, which means the agent must act in the seller's best interest, not the buyer's.
The agent cannot provide the buyer with advice or guidance that could disadvantage the seller.
2. Limited Advice
The agent can provide general information about the property, the transaction process, and paperwork, but they cannot give specific advice on issues like how much to offer or what terms to negotiate.
They cannot suggest that the buyer make certain decisions that would benefit the buyer at the expense of the seller. For example, if the buyer asks for an opinion on the value of the property, the agent cannot provide it unless it’s in the seller’s favor.
3. Disclosure of Agency Relationship
The listing agent must clearly disclose to the buyer that they represent the seller and that the buyer is unrepresented.
The agent must also disclose the nature of the relationship. This is through the Information About Brokerage Services and the brokerage might have other documentation as well.
4. Fair Treatment
The agent must treat the unrepresented buyer honestly and fairly, which includes disclosing material facts about the property.
The agent cannot mislead or deceive the buyer, even though their primary duty is to the seller.
5. No Confidentiality to the Buyer
Any information the buyer shares with the listing agent can be shared with the seller, unless it involves illegal activity or something the law prohibits sharing.
The agent has no obligation to keep the buyer’s information confidential.
7. Filling Out Forms
The agent can help the buyer fill out forms and explain what they mean, but they cannot advise the buyer on what to write or what terms to ask for.
They can help ensure the buyer completes the necessary paperwork correctly but without giving advice that would affect the negotiation.
8. No Negotiation on Behalf of the Buyer
The agent cannot negotiate on the buyer’s behalf. Their role is to convey offers and counteroffers between the seller and buyer.
The agent must remain neutral and cannot suggest negotiation strategies to the buyer.
Summary:
The listing agent's assistance to an unrepresented buyer is limited to providing general information and helping with paperwork without offering advice or making decisions that could conflict with their duty to the seller. The agent's primary responsibility is to the seller, and they must maintain a neutral, fair, and honest relationship with the buyer, while always prioritizing the seller's interests.
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