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Old 10-24-2014, 10:55 AM
 
Location: Sherman Oaks, CA
96 posts, read 152,042 times
Reputation: 44

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Quote:
Originally Posted by jackmichigan View Post
Thanks for the link. I'm not sure how authoritative that information is (and I don't have time to look into it further as I'm heading out of town very soon) but there certainly are a number of complications if it's accurate.

I've only had time to skim through the link provided, but the following appeared immediately after your citation:

"This general rule of law does not apply, however, where the broker actually had authority to receive a deposit on behalf of the seller. Virtually all listing agreement forms in use today give express authority to the broker to accept an earnest money deposit on behalf of the seller."

I have never encountered a situation where a Seller's agent was so limited in responsibilities as to create the situation you cite. Further, in this immediate situation, the real estate agent took the deposit without even having a written contract between the parties. Under what authority did he do so? And under what authority could he possibly have cause to keep it?

As to the potential of an agency relationship being established by virtue of accepting this (unauthorized) deposit, from the same document I note:
"Civil Code § 2079.17 requires that the agency relationship intended or any change in the agency relationship regarding the agents of either party to the transaction must be in writing and must be consented to by all principals."

I highly doubt that all parties consented to such a relationship, or whether either party now considers that the agent is now a Buyer's Agent or Dual Agent. So, yes, this does make for muddy waters.

So...I still disagree that accepting a deposit on behalf of the Seller by the Seller's agent would automatically make them an agent for the buyer, with full fiduciary responsibilities...but at least I know that you didn't just make it up. And I will grant you that agency relationships can be very complicated and confusing. Gotta run.
With all due respect, Jack, the information is from the official government website of the California Bureau of Real Estate. The reason I know of this stipulation in the first place is because this is a question on the CA broker exam.

I agree that it is the agent's duty to inform both parties of his relationship. However, by comparing the agent we are discussing with an agent that follows the law, you are comparing apples to oranges. For example, just because somebody illegally sold a car to another individual does not mean that they didn't sell the car. Just because the agency was established illegally, doesn't make it non-existent.
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Old 10-24-2014, 08:15 PM
 
28,107 posts, read 63,475,753 times
Reputation: 23225
Each time I have tendered a deposit check directly to either the listing agent or broker I was given a form regarding dual agency.

At one office I was told I the Broker does not allow their agents to be dual agents and someone in their office would represent me.

So far it has never been a problem because every offer/purchase is based on the terms or deal points I presented...

I'm in California and with the exception of some Washington State transactions... all of my dealings are California based.

Dual Agency or the appearance of one continues to be a hot topic here.
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Old 10-24-2014, 10:18 PM
 
12,973 posts, read 15,745,646 times
Reputation: 5478
Every body is way ahead of the fact situation. There is no way to tell whether this guy was an agent, whether he was acting as an agent, whether it is even a Real Estate matter. We have only the story of a poor guy who does not understand this stuff at all.

The "agent" may have simply charged the OP a finders fee for locating suitable properties.

Note that CA law tends to be relatively unique. Even NV which copies a lot is quite different. And the further you get from CA the more different the laws tend to be.

The advice to the OP is clear. Get someone to help who understands this stuff.
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