An “agency” relationship is a voluntary legal relationship in which a real estate licensee (the “agent”), agrees to act on behalf of a buyer or a seller (the “client”) in a real estate transaction. Oregon Agency law provides for three types of agency relationships between real estate agents and their clients:
- Seller’s Agent – Represents the seller only;
- Buyer’s Agent – Represents the buyer only;
- Disclosed Limited Agent – Represents both the buyer and seller, or multiple buyers who want to purchase the same property. This can be done only with the written permission of both clients.
The actual Oregon Agency relationships between the seller, buyer and their agents in a real estate transaction must be acknowledged at the time an offer to purchase is made. Please read this pamphlet carefully before entering into an agency relationship with a real estate agent.
Duties and Responsibilities of an Agent Who Represents Only the Seller or Only the Buyer
Under a written listing agreement to sell property, an agent represents only the seller unless the seller agrees in writing to allow the agent to also represent the buyer. An agent who agrees to represent a buyer acts only as the buyer’s agent unless the buyer agrees in writing to allow the agent to also represent the seller. An agent who represents only the seller or only the buyer owes the following affirmative duties to their client, other parties and their agents involved in a real estate transaction:
- To exercise reasonable care and diligence;
- To deal honestly and in good faith;
- To present all written offers, notices, and other communications in a timely manner whether or not the seller’s property is subject to a contract for sale or the buyer is already a party to a contract to purchase;
- To disclose material facts known by the agent and not apparent or readily ascertainable to a party;
- To account in a timely manner for money and property received from or on behalf of the client;
- To be loyal to their client by not taking action that is adverse or detrimental to the client’s interest in a transaction;
- To disclose in a timely manner to the client any conflict of interest, existing or contemplated;
- To advise the client to seek expert advise on matters related to the transactions that are beyond the agent’s expertise;
- To maintain confidential information from or about the client except under subpoena or court order, even after termination of the agency relationship; and
- When representing a seller, to make a continuous, good faith effort to find a buyer for the property, except that a seller’s agent is not required to seek additional offers to purchase the property while the property is subject to a contract for sale. When representing a buyer, to make a continuous, good faith effort to find property for the buyer, except that a buyer’s agent is not required to seek additional properties for the buyer while the buyer is subject to a contract for purchase or to show properties for which there is no written agreement to pay compensation to the buyer’s agent.
None of these affirmative duties of an agent may be waived, except #10, which can only be waived by written agreement between client and agent.
Under Oregon Agency law, a seller’s agent may show properties owned by another seller to a prospective buyer and may list competing properties for sale without breaching any affirmative duty to the seller. Similarly, a buyer’s agent may show properties in which the buyer is interested to other prospective buyers without breaching any affirmative duty to the buyer.
Unless agreed to in writing, an agent has no duty to investigate matters that are outside the scope of the agent’s expertise.
Duties and Responsibilities of an Agent Who Represents More than One Client in a Transaction
One agent may represent both the seller and the buyer in the same transaction, or multiple buyers who want to purchase the same property only under a written “Disclosed Limited Agency” agreement, signed by the seller, buyer(s) and their agent.
- When different agents associated with the same real estate firm establish agency relationships with different parties to the same transaction, only the principal broker (the broker who supervises the other agents) will act as a Disclosed Limited Agent for both the buyer and seller. The other agents continue to represent only the party with whom that agent already has an established agency relationship unless all parties agree otherwise in writing. The supervising broker and the agents representing either the seller or the buyer have the following duties to their clients:To disclose a conflict of interest in writing to all parties;
- To take no action that is adverse or detrimental to either party’s interest in the transaction; and
- To obey the lawful instruction of both parties.
- An agent acting under a Disclosed Limited Agency agreement has the same duties to the client as when representing only a seller or only a buyer, except that the agent may not, without written permission, disclose any of the following:That the seller will accept a lower price or less favorable terms than the listing price or terms;
- That the buyer will pay a greater price or more favorable terms than the offering price or terms; or
- In the transactions involving one-to-four residential units only, information regarding the real property transaction including, but not limited to, price, terms, financial qualifications or motivation to buy or sell.
No matter whom they represent, an agent must disclose information the agent knows or should know that failure to disclose would constitute fraudulent misrepresentation. Unless agreed to in writing, an agent acting under a Disclosed Limited Agency agreement has no duty to investigate matters that are outside the scope of the agent’s expertise.
Oregon Agency Law [Read]