By Michael Edlen
Real estate agents have a fiduciary responsibility to their clients, whether sellers or buyers. This requires that they must always put their client’s interests first, in all actions made or taken on their behalf.
Occasionally, an agent may go beyond the fiduciary role and actually make decisions for their clients. The concern is that this may over-step the proper bounds an agent has, and inadvertently many even work contrary to their clients’ best interests. For example, if an agent has a personal negative reaction to a proposed contract term or buyer request of their seller client, that reaction could impact the forward momentum of the transaction. All too often I have heard agents say something like, “my clients will never accept that request,” or “that offer is so low I don’t think my clients will even give you a counter offer.” Such statements may close the door to further discussion, and may do a huge disservice to the seller.
When listing a property for sale, I strive to make it clear to our clients from the start that I do not set the asking price, nor do I decide what counter offer terms to make when a contract is presented. These are decisions that are up to the seller. Likewise, I make every effort to counsel buyers on a price range that hopefully might accomplish their objective, but with the caution that we have no idea what response the seller may make, especially if there are possible multiple offers.
We explain various options and alternative responses our sellers may consider when responding to offers and the possible results from each of them in the case of multiple offers. However, the seller always has to make the actual decisions. We do control the marketing process, the appointments for showings, pre-negotiation conversations, influences on buyers’ perceptions of value, and the actual negotiation process. These areas are proper activity opportunities for agents to fulfill in their fiduciary role without going beyond them into the aspect of client decision making.
I have also heard agents saying thing like “my clients won’t pay that much” or “my client has to have at least 4 bedrooms, or “my client won’t buy a fixer.” Then weeks later the agents discover that “their client” bought a home with someone else representing them and paid more or accepted 3 bedrooms and an office, or even bought a well-priced property that needed work. Some agents decide to not show or tell their clients about a new listing because it’s a bit further away from town or is on a busy street or has a lot of steps to the entry. They may be correct that their client would not want to see such properties but the client does have the option to make that decision only when it is given. Perhaps their clients may have been willing to make a compromise if given the choice of that alternative, especially if they have been trying to identify a property to purchase for several months.
The agent’s professional role is always to manage the process, and bring as much information that may be important to the client’s awareness and allow the actual decision-making be up to the clients.
