What can buyers do when a seller’s agent claims them as ‘his client’?
Aug 18, 2023Marketwise column for the Bay Area News Group and its flagships The Mercury News and East Bay Times | Published: July 8, 2023
By Pat Kapowich
Regarding your June 24, 2023, column titled “Is saving money worth the potential of stigmatizing your home after a failed sale?” on The Mercury News and East Bay Times websites:
Q: A seller’s agent tricked us. We attended an open house and asked for the presale seller inspections. The listing agent complied — no questions asked. In Silicon Valley, homebuyers can ask the listing agent for the seller’s presale inspections. If, after reading the documents, we are still interested in the property, then our buyer’s agent will be called upon. It’s how our friends bought homes. However, the sellers’ agent claimed us as homebuyers. It’s a shame. We loved that house.
A buyer’s agent, working under the seller’s agent, must represent us. We, of course, protested. The seller’s agent claimed us as his client. He stated that Realtors procure causes for this reason. It was outrageous. The reality sunk in. We were being prohibited from using our buyer’s agent to make an offer. Worse, we had to make an offer through this seller’s agent team member. The sheer mess of it all was unacceptable. We have avoided this agent, his team members and their property listings.
Was this behavior acceptable?
A: This egregious conduct is indefensible. The seller’s agent was unethical in his tactics. If a homebuyer states they have a buyer’s agent, the seller’s agent should stand down. Full stop.
For starters, these sellers’ agents breach the 110-year-old code of ethics for the National Association of Realtors Article 12:
• “Realtors shall be honest and truthful in their real estate communications and shall present a true picture in their advertising, marketing, and other representations.”
The California Association of Realtors (C.A.R.) has procuring cause guidelines for dispute resolution broken down into categories such as the burden of proof, fact patterns and factor chart.
For instance, the C.A.R. factor chart under Buyer’s Choice No. 10 states:
• “Buyer is dissatisfied with intro broker due to the broker’s professional abilities or conduct. Examples could include misrepresentations or failure to disclose, lack of knowledge with an area or type of property, being non-responsive to the client/buyer by failing to be timely or return calls, disclosures of conflicts of interest, self-dealing or negotiating skills.”
This seller’s agent’s self-dealing misrepresented the procuring cause factors. Dual agency is when one agent represents both parties and receives two paychecks. You did not fire your buyer’s agent. You and yours did not ask this seller’s agent to be your buyer’s agent. You were actively working with a buyer’s agent.
You can’t win in this situation. The seller’s agent is a gatekeeper. An ombudsman from C.A.R. could have corrected this seller’s agent’s wayward behavior. However, the seller’s agent would have steered his seller to other purchase offers, not yours. You can best complain to his supervising sales manager, broker of record. Also, file a complaint with the local Realtor association. That way, you might help the homebuyers who encounter this seller’s agent in the future.
Questions? Or are you or someone you know navigating life’s transitions? Let lauded negotiator Pat Kapowich make your next move easy. Visit Kapowich’s website for free area housing data, insights and trends. Or put his artful blend of specialized credentials, decades of experience and endorsed skill set to work for you. Kapowich instills confidence when buying, selling, relocating or resizing homes. Do not just make a move — make the best move. Contact him today, Realtor Pat Kapowich, a career-long consumer-protection advocate.
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