Can a broker always be a dual agent?

QUESTION: I am one of six members of an LLC that owns an investment property. The other members of the LLC have asked my brokerage firm to list the property for sale. I’m getting ready to draft the listing paperwork, and I’m not sure how to approach the dual agency section. Which type of dual agency is appropriate if I am a member of the LLC that is selling the property?

ANSWER: If you are the agent listing the property on behalf of your real estate firm, then you cannot be a dual agent, but your firm may be.

Agents can sell their own property without a listing agreement. Real estate brokerage occurs when a licensed agent is negotiating the sale of someone else’s property for a fee. An agent selling their own property, or an agent genuinely not ever expecting to receive a fee for a transaction, may not need a real estate license at all for their activities.

In your scenario, if your real estate firm is listing the property for a fee (and not just you individually as an owner), then a listing agreement would be appropriate since both the seller-LLC and your brokerage firm are separate entities. If your firm is not collecting a fee, or if you alone will be handling all brokerage activities without your brokerage firm’s assistance, then a listing agreement may not be necessary.

As for dual agency, the Exclusive Buyer Agency Agreement (Form 201) outlines the terms of dual agency as follows:

If dual agency is permitted, Buyer understands and agrees to the following:

i. Firm will act as Buyer’s exclusive agent up until dual agency occurs. However, in its separate representation of Buyer and a seller, Firm may obtain information which, if disclosed, could harm Buyer’s bargaining position.

ii. Buyer will have to make their own decisions as to what terms will be included in an offer to purchase unless designated dual agency is directed by Buyer below.

iii. Unless required by law, Firm will not disclose to a seller: that Buyer may agree to a price or contract terms different than what Buyer has offered; Buyer’s motivation for wanting to buy a property; and any other information that Buyer has told Firm is confidential. Firm will similarly not reveal to Buyer the same kind of information as it relates to a seller.

iv. Firm will represent Buyer and the seller in a balanced and fair manner, and Firm will assist both parties in their communications regarding the transaction. However, Firm will be limited in its ability to advocate for Buyer, like an exclusive agent would, unless designated dual agency is directed below.

v. If designated dual agency is directed, an agent in Firm will not be designated to represent Buyer or the seller if that agent has received confidential information concerning the other party.

vi. Buyer has determined that the advantages of dual agency outweigh the disadvantages.

Even in dual agency, a listing agent or firm has a fiduciary obligation to the buyer as their agent. The scope of the dual agency is governed by this section of Form 201, but it is a fiduciary duty nonetheless. When a broker is also an owner of the property being sold – or in your case, simply a member of the owner-LLC – the broker cannot fulfill their fiduciary duty to the buyer, even as that duty is modified in Form 201. Section (iii) is especially problematic. Since you cannot fulfill even the most basic dual agency duty to a buyer in your role as the seller, dual agency is not possible for you.

If you want your brokerage firm to be able to represent a buyer in the sale of your LLC’s property, then you may consider either not using your firm for the listing at all, asking another agent in your firm to be the listing agent instead of you, or finding another way to make sure that you are not the broker representing the buyer for your firm. By putting separation between yourself, your LLC, your brokerage firm, and the buyer, dual agency may be permitted so long as the real estate firm’s fiduciary duty to the buyer can be fully satisfied.

Release Date: 7/24/2025

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