Guest view: What real estate needs to learn from the legal industry
The issue of conflicts of interest between parties exists in a variety of industries.
Ethics rules prohibit a single lawyer from representing competing sides in the same transaction. It's common sense. You can't ensure fair and equal representation to competing parties if you represent both sides. And clients want more than just fair representation; they want to feel they have an advocate who puts their interests above all others.
So why, then, are real estate agents not restricted from representing competing parties in the same way lawyers are? In Pennsylvania, as in many states across the U.S., real estate agents are permitted to represent both a buyer and seller (or tenant and landlord) in the same real estate transaction. It's great for the real estate agents since they make full commissions, but what about the clients they represent?
The regulations and restrictions (or lack thereof) surrounding a real estate agent’s conflicts of interest when representing both parties is cause for concern. If real estate agents were required to approach conflicts of interest in the same way lawyers do, here is how the real estate industry would be reshaped.
The legal model
The American Bar Association published and periodically revises Model Rules of Professional Conduct, which have been adopted as legally binding ethics rules governing lawyers in most states. The model rules govern conflicts of interest with both current and former clients. Under the model rules (and under the ethics rules of the states that have not adopted the model rules), law firms may not represent both parties in a single transaction. This means a buyer/tenant must have separate legal representation from the seller/landlord. This gives clients complete assurance that their lawyer is committed solely to their interests. Moreover, one party cannot be pressured into using the other party’s lawyer, because it simply isn’t an option.
Real vs. perceived conflicts of interest: Does it make a difference?
Conflicts of interest between two parties can be real or perceived. While real estate agents may argue that they always take a fair and balanced approach in their real estate transactions, if they represent both parties how that can be guaranteed? If one party doesn't get exactly what it wants, it may question whether its real estate agent did everything possible to represent its interests. It doesn't make a difference whether a conflict of interest is real or perceived; for both parties to feel adequately represented they cannot use the same real estate agent.
Why dual agency doesn't work
Full-service commercial real estate firms and brokerage houses tout the fact that they can "do it all." They represent both a buyer/tenant and seller/landlord in a real estate transaction through what is called dual agency. However, dual agency is not in the best interest of either party, just the real estate agent who makes commission on both sides.
In dual agency, a real estate agent is more likely to steer buyers/tenants toward properties they represent on behalf of their seller/landlord clients. When it comes to negotiating terms, parties represented by the same real estate agent have less negotiation power and may have to compromise more than they would have if they had exclusive representation. And the list of potential abuses goes on.
The challenge is that many commercial buyers and tenants aren't aware that they can work with a real estate agent who is 100 percent exclusive to representing the interests of the buyer/tenant, often at no cost to them. There are real estate firms right here in Central Pennsylvania that only represent corporate business space users (buyers and tenants) and have resolved to never represent landlords or developers. Buyers and tenants need to be made aware they have options for sole representation, and it's critical they seek this out as the first step when looking for commercial space.
One real-life example
In 2016, the California Supreme Court upheld a challenge to dual agency in the case of Horiike vs. Coldwell Banker. The case has gone on to receive national attention regarding the practice of dual agency and the question of whether a single brokerage company can actually represent the interests of two competing parties in a fiduciary capacity.
The original case was based on a dispute regarding the square footage of a property purchased by the plaintiff, Hiroshi Horiike, who was represented by the same company marketing the property for sale, Coldwell Banker. The court determined that Coldwell Banker did not provide the same degree of care to the buyer as compared to the seller of the property, but owed both the same degree of care and representation.
Many of the world's largest real estate companies both practice and encourage dual agency. The case of Horiike vs. Coldwell Banker brings to light the inherent conflicts of interest in such practices. Some states, like Colorado, have made dual agency illegal. It’s likely that California will follow suit. Given the national attention on this case, it’s reasonable to think other states will now consider outlawing dual agency as well, or at least putting regulations in place to reign in abuses.
The issue from a legal perspective
Tim Anderson, partner at Pepper Hamilton LLP, represents a variety of clients in real estate conveyancing, leasing, financing, foreclosures and litigation. He shares his perspective on conflicts of interest in real estate transactions.
"In real estate law, we take conflicts of interest very seriously. For example, we cannot represent both parties to a single transaction. We may represent each party in separate transactions if we conclude that we can provide competent and diligent representation to each affected client, the representation is not prohibited by law, and each affected client gives informed consent in writing," explained Anderson.
"I routinely caution clients about the inherent risks of dual agency in real estate transactions. I warn clients about the risk that their agent’s representation of their interests may be limited by the same agent’s responsibilities to the other party. I’ve found that clients who agree to dual agency, because they think they can protect their own interests, often do not treat their own agent with complete candor," said Anderson.
Lastly, Anderson offered this advice, "In my opinion, the real estate industry would benefit from adopting rules similar to the rules for lawyers. This does not necessarily require real estate agents to represent only buyers or sellers (landlords or tenants), but real estate agents should not try to represent the buyer and seller (landlord and tenant) in the same transaction."
To close, I hope that the real estate industry as a whole will reflect on the ways in which other industries handle the issue of conflicts of interest. To allow even the perception and possibility of the conflicts of interest that occur in dual agency is unfair and unnecessary.
To tenants and buyers looking for commercial space, I urge you to do your research and find an exclusive tenant representative or buyer’s agent who will strictly represent your interests in a real estate transaction. All parties are entitled to exclusive representation. Be sure to seek out yours.
Mike Kushner is the owner of Lower Paxton Township-based Omni Realty Group.