Dual agency exists when the same Broker-in-charge is representing the buyer and the seller in the same transaction. Note that I said Broker-in-charge, not a real estate agent. You may find that one real estate agent is representing the seller and another real estate agent is representing the buyer, but, if both real estate agents work for the same broker-in-charge, it will be a dual agency transaction. Dual agency is legal in South Carolina as long as there is informed and written consent from all parties prior to entering into negotiations.
The critical aspect of dual agency that must be understood is that the broker-in-charge owes both buyer and seller the same fiduciary duties consisting of loyalty, obedience, disclosure, confidentiality, reasonable care, diligence, and accounting. Except under dual agency, some of these duties are limited. The duties that will be limited included loyalty, obedience and disclosure. Although some duties are limited, they are limited to both the buyer and seller. In essence, both buyer and seller will receive the same amount of representation as the other. The key duty that will never be limited to either party is confidentiality. For example, the agent may know the seller is willing to take less than the listing price, but the agent cannot tell the buyer client. Or the agent may know the buyer client may be willing to pay more than the offered price, but the agent cannot tell the seller client.
In January 2005, South Carolina passed a law making DESIGNATED AGENCY legal. This is a new option available to real estate consumers if they are not comfortable with Dual Agency. In the cases where one real estate agent would be representing both the buyer and the seller, occasionally one or both parties may not be comfortable with the situation. The party uncomfortable with this situation can request designated agency. By doing so, the Broker-in-charge will designate another real estate agent from within the office to represent the buyer while the original real estate agent will continue to represent the seller. This way, both the buyer and seller will have exclusive representation by their own real estate agent. Although designated agency is still a form of dual agency since the Broker-in-charge is still representing buyer and seller, it does allow for exclusive representation for the buyer and seller. Real estate agents are prohibited by law to discuss confidential information among each other. So buyers and sellers will have their confidential information protected.
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