(Déjà vu) Tight Inventory Is Fueling a National Off-Market Trend and a Hidden Legal Risk
Aug 16, 2026From the Kapowich Vault. Real estate attorney Simon Offord joined Pat Kapowich to explain how private, off-MLS home sales quietly raise dual agency exposure. A smaller pool of participating real estate agents increases the odds that the same real estate agent, or agents under the same brokerage, represent both the buyer and the seller.
Offord explains that courts have punished dual agents even when the surrounding facts were otherwise favorable, and that the California Supreme Court years later settled this question in Horiike v. Coldwell Banker Residential Brokerage Co., ruling that a brokerage owes a fiduciary duty to both parties even when different real estate agents under the same broker represent each side.
For Home Sellers, less market exposure does not mean less risk. It often means a different kind of risk, one with less built-in transparency.
Full interview link available in the first comment.
Guest:
Real Estate Attorney Simon Offord
Brewer Offord & Pedersen LLP
PS: This is not a new problem. Pat served on the Santa Clara County Association of Realtors Off MLS task force in 2010 and 2011, and the same fiduciary conflict examined then is resurfacing now as national inventory tightens and off-market sales trend upward again. Home sale prices have nearly doubled since this interview was recorded. The risk has not gone anywhere.
Before you list, call Pat.
Pat Kapowich, CRB, CTPS | Kapowich Real Estate | Pat@SiliconValleyBroker.com | (408) 245-7700 | CalDRE #00979413
This post is for general informational purposes and does not constitute legal, tax, or real estate advice. Always consult qualified professionals regarding your particular situation.
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