Quote:
Originally Posted by jackmichigan
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.
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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.