In Hawaiʻi if you are buying or selling real estate you are likely working with one or two real estate professionals. There are a few different ways in which a real estate professional can represent a client – which we will cover later in this post. First, we are going to define agency. Agency refers to the legal relationship between a professional, the agent, and the person represented by the professional referred to as the client. Agency is the highest level of legal relationship and one that requires certain fiduciary duties. When this type of relationship is formed, the agent owes the following duties to their client:

• Disclosure
• Reasonable Care
• Confidentiality
• Accounting
• Loyalty
• Obedience
• Diligence

While an agent must be fair and honest to all parties in the transaction, the agent owes their allegiance to their client and the client can rely on the agent to represent them and put their interests first.

In real estate, an agency relationship is formed between a brokerage and a client. A client may be a buyer, seller, landlord, or tenant. Typically, the client will work with one real estate agent within the brokerage, but ultimately the relationship is between the brokerage & the client. In order for an agency to be formed, both parties must be in agreement and it is recommended to have this agreement in writing.

Sometimes you may hear real estate professionals refer to buyers or sellers as customers instead of clients. So what is the difference between a client and a customer? The duties owed to a client differ from the duties that an agent owes to a customer. There are certain situations that come up in real estate transactions in which a buyer or seller will be a customer and not a client. For example, when there is a For Sale by Owner situation, the seller would be a customer to the buyer’s agent. Similarly, if a buyer chooses not to be represented but purchases a property in which an agent represents the seller, the buyer would be a customer of the seller’s agent. When you work with a LUVA agent as a customer, you can expect great customer service and to always be treated with honesty and professional integrity. Our agents are professionals who will use reasonable skill and care and will disclose any known material facts. However, it is not our duty to act with a customer’s fiduciary duties in mind.

LUVA agents are always honest and professional with everyone involved in the transaction but the client’s interest will be placed ahead of others. The client will be able to discuss individual properties, obtain advice and opinions from their agent concerning a specific property, and discuss the structure of an offer and any other detail pertaining to the transaction.

Types of Agency Representation

SELLER AGENCY

At LUVA, when our brokerage represents a seller client, an agreement, called a listing agreement, is signed by the agent and the client. This is a contractual agreement and primarily it will be an exclusive right-to-sell agreement, which provides the highest level of service to the seller. This allows the brokerage to be the sole listor of the property and states a commission rate that will be due to the brokerage upon the selling of the property. Once the agreement is executed, the agent owes all fiduciary duties to the client.

It is the duty of the agent to advocate solely for the seller and obtain the sale of the property at the best price available or a price acceptable to the seller.

BUYER AGENCY

While it hasn’t always been the case, today buyers are typically represented by an Agent and receive the same level of representation that sellers do. As a buyer client working with an agent, the agent will be the buyer’s fiduciary and will act with the buyer’s best interest in mind. The buyer will be guided through the home-buying process, from finding the right home to analyzing and negotiating offers, all the way through escrow until closing. Another benefit to working with a Buyer’s Agent is that typically will not cost the client money, as the seller usually pays all commissions.

DUAL AGENCY

Dual agency may arise when a buyer client represented by LUVA is interested in a property that is also listed by LUVA. Anytime one brokerage represents both the buyer and the seller in a transaction, dual agency occurs. If a dual agency situation exists, licensees are required to disclose that to all parties involved and obtain an executed HAR Dual Agency Consent Addendum.

We look forward to representing you next time you are in need of a real estate professional. Please reach out to us with any questions at [email protected]!