Agent Relationships

In New Jersey, real estate agents are required to disclose how they intend to work with buyers and sellers in a real estate transaction. (In rental transactions, the terms "buyers" and "sellers" should be read as "tenants" and "landlords", respectively.)

There are four business relationships: (1) seller's agent; (2) buyer's agent; (3) disclosed dual agent; and (4) transaction broker. Each of these relationships imposes certain legal duties and responsibilities on the agent as well as on the seller or buyer represented. These four relationships are defined in greater detail below. Please read carefully before making your choice.

1. As a seller's agent or subagent, the real estate agent represents the seller and all material information supplied by the buyer will be told to the seller.

2. As a buyers agent, the real estate agent represents the buyer and all material information supplied by the seller will be told to the buyer.

3. As a disclosed dual agent, the real estate agent represents both parties. However, the disclosed dual agent may not, without express permission, disclose that the seller will accept a price less than the listing price or that the buyer will pay a price greater than the offered price.

4. As a transaction broker, the real estate agent, does not represent either the buyer or the seller. All information acquired from one party may be told to the other party.

Before you disclose confidential information to a real estate agent regarding a real estate transaction, you should understand what type of business relationship you have with that agent.

Seller's Agent

A seller's agent WORKS ONLY FOR THE SELLER and has legal obligations, called fiduciary duties, to the seller. These include reasonable care, undivided loyalty, confidentiality and full disclosure. Seller's agents often work with buyers, but do not represent the buyers. However, in working with buyers a sellers agent must act honestly. In dealing with both parties, a sellers agent may not make any misrepresentations to either party on matters material to the transaction, such as the buyers financial ability to pay, and must disclose defects of a material nature affecting the physical condition of the property which a reasonable inspection by the licensee would disclose.

Seller's agents include all persons licensed with the brokerage firm which has been authorized through a listing agreement to work as the seller's agent. In addition, the other brokerage firms may accept an offer to work with the listing broker's firm as the seller's agents. In such cases, those firms and all persons licensed with such firms, are called "sub-agents". Sellers who do not desire to have their property marketed through sub-agents should so inform the seller's agent.

Buyer's Agent

A buyer's agent WORKS ONLY FOR THE BUYER. A buyer's agent has fiduciary duties to the buyer which include reasonable care, undivided loyalty, confidentiality and full disclosure. However, in dealing with sellers a buyers agent must act honestly. In dealing with both parties, a buyer's agent may not make any misrepresentations on matters material to the transaction, such as the buyer's financial ability to pay, and must disclose defects of a material nature affecting the physical condition of the property which a reasonable inspection by the licensee would disclose.

A buyer wishing to be represented by a buyer's agent is advised to enter into a separate written buyer agency contract with the brokerage firm which is to work as their agent.

Disclosed Dual Agent

A disclosed dual agent works for both the buyer and the seller. To work as a dual agent, a firm must first obtain the informed written consent of the buyer and the seller. Therefore, before acting as a dual agent, brokerage firms must make written disclosure to both parties.

Disclosed dual agency is most likely to occur when a licensee with a real estate firm working as a buyer's agent shows the buyers properties owned by sellers for whom that firm is also working as a seller's subagent.

A real estate agent working as a disclosed dual agent must carefully explain to each party that, in addition to working as their agent, their firm will also work as the agent for the other party. They must also explain what effect their working as a disclosed dual agent will have on the fiduciary duties their firm owes to the buyers and to the sellers. When working as a disclosed dual agent, a brokerage firm must have the express permission of a party prior to disclosing confidential information to the other party. Such information includes the highest price a buyer can afford to pay and the lowest price a seller will accept and the parties' motivation to buy or sell. Remember, a brokerage firm acting as a disclosed dual agent will not be able to put one party's interests ahead of those of the other party on how to gain an advantage at the expense of the other party on the basis of confidential information obtained from or about the other party.
 

Transaction Broker

The New Jersey Real Estate Licensing Law does not require real estate professionals to work in the capacity of an "agent" when providing brokerage services. A transaction broker works with a buyer or seller or both in the sales transaction without representing anyone. A transaction broker does not promote the interests of one party over those of the other party to the transaction.Real estate agents with such a firm would be required to treat all parties honestly and to act in a competent manner, but they would not be required to keep confidential any information. A transaction broker can locate qualified buyers for a seller or suitable properties for a buyer. They can then work with both parties in an effort to arrive at an agreement on the sale or rental of real estate and perform tasks to facilitate the closing of the transaction. 

A transaction broker primarily serves as a manager of the transaction, communicating information between the parties to assist them in arriving at a mutually acceptable agreement and in closing the transaction, but cannot advise or council either party on how to gain an advantage at the expense of the other party. Owners considering working with transaction brokers are advised to sign a written agreement with that firm which clearly states what services that firm will perform and how it will be paid. In addition, any transaction brokerage agreement with a seller or landlord should specifically state whether a notice on the property to be rented or sold will or will not be circulated in any or all Multiple Listing System(s) of which that firm is a member.