Dual Agency: A tale of two markets

by Jon Gorey

Working in both the Boston and Miami metro areas, Keller Williams Realtor Hudson Santana has a unique perspective on dual agency, since the practice is permitted in Massachusetts but prohibited in Florida.

Agents in Massachusetts can choose to be a seller’s agent, buyer’s agent or dual agent — or simply act as a facilitator, not representing either party. In Florida, meanwhile, agents can work as a single agent representing either the buyer or seller or as a transaction agent.

“In Boston, the brokerages really incentivize you and encourage you to be either a buyer agent or a seller agent, whereas in Florida, all the brokerages really require you to be a transaction agent — which means they don’t actually want you to represent either party,” Santana says. “They just want you to represent the transaction, because it removes the liability from them.”

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Santana thinks that’s dangerous for consumers. “Most clients are under the impression that they’re being represented, but in reality, they’re not,” he says. “The agent is just a transaction agent, which means they’re just there to make the transaction go forward.”

While dual agency is legal in Massachusetts, Santana doesn’t like or practice it, as he believes it’s all but impossible to truly represent two opposing clients impartially. But he’s not a fan of the way Florida seems to handle the situation, either. “In Florida, they actually want you to be the complete opposite — they don’t want you to represent anybody, which I also think is bad.”

Indeed, transactional agency is the statewide default, whether or not consumers are aware of it. “It shall be presumed that all licensees are operating as transaction brokers unless a single agent or no brokerage relationship is established, in writing, with a customer,” states a 2020 Florida real estate statute.

That means consumers aren’t always receiving the full fiduciary advocacy they assume they’re getting. For example, Santana recently found out about a property for sale near his home; the asking price was $1.55 million. He offered the listing agent $1.5 million, explaining that he wasn’t working with a buyer’s agent — which meant the listing agent would keep the entire commission.

The listing agent presented the offer, and the seller accepted — signing the deal even as potential buyers paraded through the property at an open house later that day. “Even though, that same day, there were literally, like, around 40 people to see this house, this guy allowed me to get this deal for below asking price,” Santana says. “You would think that he would say, ‘No, we can’t take your offer right now,’ — because what if another offer comes in? And odds are, this property was going to sell for more than the asking price.”

But as a transaction broker, the agent did his job — he got the deal to close. “Instead of making $40,000, he made $80,000, and he did not break the law, because he’s a transaction agent,” Santana says. “Technically, according to Florida law, this guy didn’t do anything wrong. But was the seller well represented?”

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