FAQ: Current and Former Clients

Someone I know wants to make an offer on my seller client’s property. What should I do? Does the restriction on dual agency mean that I must stop working for my current client?

Simply knowing someone socially does not mean you are their agent. Accordingly, dealing with a friend or acquaintance who wants to make an offer on your seller client’s property is unlikely to amount to “dual agency.”

However, it could put you in a conflict of interest.

You will need to apply professional judgement to decide whether your relationship with a potential buyer prevents you from fully representing your seller client. Ask yourself:

• Is my personal relationship with the prospective buyer so close that it could actually impair my duty of loyalty to my seller client in the transaction?

If so, you should disclose the conflict to the seller and refer the buyer to another real estate professional.

• Could my personal relationship with the prospective buyer create a risk of the seller questioning whether I was fully loyal to them in the transaction?

If so, you should disclose the potential conflict to the seller and seek their instructions on how to proceed.

If your friend or acquaintance is unrepresented in the current transaction, remember that you must make the Disclosure of Representation in Trading Services and the Disclosure of Risks to Unrepresented Parties.

You should also consider the risks of falling into an implied agency situation should you decide to deal with a friend or acquaintance as an unrepresented party in a transaction.

My former client wants to make an offer on my current listing. What should I do? Does the restriction on dual agency mean that I must stop working for my current client?

This is a situation that will require you to use your professional judgement.

Remember, you have an ongoing duty of confidentiality towards your former client: you cannot share any confidential information you learned while acting as an agent for your former client (such as their motivations, needs, or financial information).

At the same time, you have a duty to act in your current client’s best interests, and to disclose any material information to them.

So, you must ask yourself:

• Can I still effectively represent my current client? Or did I receive confidential information from my former client that would be relevant to my current client, so that my ability to represent my current client is impaired?

You should ask yourself these questions regardless of whether your former client is represented or unrepresented in the current transaction.

If you are satisfied that you can continue to act for your current client, tell your current client that:

• The potential buyer is your former client, and
• Any confidential information you received from your former client while acting as their agent, you will not be able to disclose to your current client.

If your former client is unrepresented in the current transaction, remember that you must make the Disclosure of Representation in Trading Services and the Disclosure of Risks to Unrepresented Parties.

You should also consider the risks of falling into an implied agency situation should you decide to deal with a former client as an unrepresented party in a transaction.

Can a designated agent for a seller help a buyer they are representing under an exclusive buyer’s agency agreement make an offer on the seller client’s property?

Unless the dual agency exemption applies, you cannot act for both clients in this scenario (even with their consent) because it would amount to dual agency.

Under Rule 65, you may resolve the conflict in one of two ways:

Option 1: Stop representing both the buyer and the seller in the transaction, and refer each of them to independent real estate professionals; or

Option 2: Continue representing only one of the clients in the transaction, provided both the buyer and seller agree that you can do so in a form approved by BCFSA.

Can a designated agent for a seller help a potential buyer they have been dealing with as an unrepresented party make an offer on their seller client’s property?

You should carefully consider whether you have created an implied agency relationship with the buyer.

In the time you have been dealing with the buyer as an unrepresented party, have you provided the buyer with advice, received confidential information, or otherwise dealt with the buyer in a manner that could reasonably have led the buyer to believe he is your client?

If you are in an implied agency relationship with the buyer, then you cannot assist the buyer in purchasing your seller client’s property because doing so would amount to dual agency, which is restricted except under limited circumstances. Under Rule 65, you may resolve the conflict in one of two ways:

Option 1: Stop representing both the buyer and the seller in the transaction, and refer each of them to independent real estate professionals; or

Option 2: Continue representing only one of the clients in the transaction, provided both the buyer and seller agree you can do so in a form approved by BCFSA.

If you are not in an implied agency relationship with the buyer, you may continue dealing with the buyer as an unrepresented party. You can provide the buyer with limited assistance in making an offer to purchase your seller client’s property, provided you made the required disclosures to the buyer. Keep in mind that dealing with unrepresented parties creates risks for consumers and for you, the real estate professional.

If a designated agent for a seller shows the seller’s property to an unrepresented buyer, can the designated agent go on to show the unrepresented buyer other homes in the area?

Before showing your seller client’s property to the unrepresented buyer, you should have advised the buyer that you could not offer him agency as you are already the designated agent for the seller. You should also have provided the buyer with the required disclosures.

You may wish to refer the buyer to another real estate professional who can show them other homes in the area. If there is any possibility that the buyer is going to want to revisit the possibility of purchasing your seller client’s home, you may not wish to take the buyer on as a client.

Let’s say that you begin acting as the buyer’s agent, or you show him other homes and an implied agency relationship develops. Then the buyer decides that he wishes to make an offer on your seller client’s property. You would be in a conflict of interest, as continuing to act for the buyer in that scenario would amount to “dual agency” (which is restricted in B.C. except in limited circumstances).

Under Rule 65, you may resolve the conflict in one of two ways:

Option 1: Stop representing both the buyer and the seller in the transaction, and refer each of them to independent real estate professionals; or

Option 2: Continue representing only one of the clients in the transaction, provided both the buyer and seller agree you can do so in a form approved by BCFSA.

Can the designated agent for two buyers who are each interested in making an offer on the same home continue to act for both buyers?

Unless the dual agency exemption applies, you cannot act for both clients in this scenario (even with their consent) because to do so would amount to dual agency, which is restricted in B.C.

Under Rule 65, you may to resolve the conflict in one of two ways:

Option 1: Stop representing both buyers in the transaction, and refer each of them to independent real estate professionals; or

Option 2: Continue representing only one of the buyers in the transaction, provided both the buyers agree you can do so in a form approved by BCFSA.

If a real estate professional makes a listing presentation to a seller and is not awarded the listing, can they subsequently represent a buyer client who wants to make an offer on that property?

You may be able to represent your buyer client in making an offer on the seller’s property, depending on the circumstances.

If, before making your listing presentation to the seller, you

• Disclosed to the seller that you would be treating him as an unrepresented party; and
• Warned the seller that as he was not in an agency relationship with you, you would be under no obligation to protect any of his confidential information;

then you may be able to represent the buyer in making an offer on the seller’s property.

If you were not clear with the seller about the nature of your relationship, and allowed the seller to provide you with confidential information in the course of your listing presentation without warning him that you would not be obliged to keep it confidential, then acting for the buyer against the seller in this transaction may put you at risk.

If the designated agent for a seller is approached by a former client who is interested in the seller’s property, what should the designated agent do?

First, you should advise your former client that you cannot represent them as a client because you are already the designated agent for the seller. Give your former client the Disclosure of Representation in Trading Services and the Disclosure of Risks to Unrepresented Parties.

Then, consider whether you can continue acting for your current seller client in the circumstances. Have you received confidential information from your former client that will impair your ability to act for your seller client?

If you are satisfied that you can continue to act for your current seller client, you should tell your current client that:

• The potential buyer is your former client, and
• Any confidential information you received from your former client while acting as her agent, you will not be able to disclose to your current client — even if it is material to the present transaction.

You cannot act for your former client in this scenario because it would amount to dual agency, which is restricted. With appropriate disclosure to your current seller client, and with his permission, and after making appropriate disclosures to your former client, you may be able to deal with your former client as an unrepresented buyer.

However, before you continue acting for your current seller client you should think carefully about the confidential information you received from your former client while acting as their agent. You cannot disclose this information to your current seller client. Will that impair your ability to represent your seller client in the sale of his property?

Before acting for a client whose interests are opposed to one of your former clients, you should consider:

• How long it has been since you acted for the former client?
• Was the confidential information you received from the former client specific to a particular transaction? Or was it generally relevant to all transactions involving that client?
• Was the past transaction involving your former client connected to the present transaction in which you are seeking to act against your former client?

If you continue to act for your current seller client, you cannot share with them any confidential information you received from your former client while you were acting as her agent. You are no longer in an agency relationship with your former client, but your obligation to protect their confidential information continues. list