"Every licensee shall disclose in writing, on the Notice of Agency form promulgated by the Commission, whether the licensee represents the seller, the buyer or both. The disclosure shall be made prior to any person signing any contract for representation by a licensee or a contract for the sale or purchase of real estate." The State of West Virginia, Code §30-40-26(d)"

According to West Virginia law, the Notice of Agency form has to be signed by all parties before any other kind of contract can be signed. But a lot can go against your end of the deal before a contract is signed if you don't know who's working for you or, for that matter, whether anyone is.

Who's representing whom, and to what degree, can confuse a lot of buyers and sellers of real estate. Even some real estate professionals may struggle with the nuances of the numerous types of representation. Laws have been enacted, disclosures drafted, and forms signed, in an effort to clear it up. But, though today's buyers and sellers are savvier than in decades past, the question of who's got your back can remain cloudy, and vary from state to state.

Let's start out by defining some of the lingo…..

Principal – That's you, the buyer or the seller.

Agent – The real estate broker or salesperson with whom you are working to buy or sell a home.

Agency – In a real estate nutshell, agency is the legal relationship between you and the Agent who is selling your home, or showing you homes to buy. When you give the Agent the authority to act on your behalf to buy or sell property, you have created an Agency relationship. Generally, a contract is involved, but not necessarily; sometimes Agency is implied.

Fiduciary – A person who acts on behalf of, or legally represents, another person in a real estate transaction, with only their best interests in mind. The Latin origin of fiduciary means confidence or trust. Your Agent is the Fiduciary in a Fiduciary Relationship (below).

Types of relationships and representations between real estate professionals and consumers…

Fiduciary Relationship – There are varying degrees of representation and service offered to buyers and sellers by Agents, as seen below. The highest and best form of representation is "Single Agency," in which the Agent represents only one person – you – in the transaction. When this single agency relationship exists, it is known as a Fiduciary Relationship – a relationship of complete loyalty, confidentiality, and trust; your Agent has solely your interests guiding all his or her actions.

Single Agency – The Agent works solely for you, whether you are the Buyer or Seller. Single Agency is the highest and best form of representation, offering the most service and loyalty by the Agent on behalf of the Principal, and creates a fiduciary relationship between you and your real estate professional.

Seller's Agent – Also known as the Listing Agent. The Agent has a Single Agency with the Seller, representing solely their best interests in all facets of the transaction, and attempting to get the highest possible price for their home with the least number of concessions to the Buyer. The Seller's Agent cannot legally represent the Buyer. In fact, it is their duty to disclose anything they learn about the Buyer, their finances, or personal situation – including how much they think the Buyer will pay for the house, or how motivated they are to purchase – to their Seller. A Seller's Agent has a fiduciary relationship with their Seller.

Buyer's Agent – The opposite of a Seller's Agent. The Agent works only for the Buyer, representing solely their best interests in all facets of the transaction. The Agent attempts to get the lowest possible price for their Buyers, making the least concessions to the Seller, and will disclose any information they learn about the Seller – such as how eager they are to sell, or what offer they might take – to their Buyer. Usually, the Buyer's Agent's commission is paid by splitting the commission paid by the Seller to the listing broker. "Buyer's Agents", "Buyer's Broker", and "Buyer Agency," all forms of representation designed to aid and protect the Buyer, are unusual in many areas of West Virginia. Not infrequently, both Agents in the transaction – the Listing Agent, and the Agent showing the Buyer homes – both represent the Seller, effectually hanging the Buyer out to dry. Incredibly, some listing brokerages will not even share the commission with a Buyer's Agent, or will only pay them a fraction of the split offered Agents with less loyalty to their Buyer. Not surprisingly, this discourages some Buyer's Agent from showing a property; thus, the Listing Agent harms their own Seller.

Sub-Agent – An Agent who shows the Buyer properties listed by another broker, but actually works as a Sub-Agent of the Seller's broker, rather than for the Buyer. The Agent's loyalties lie with the Seller just as if they had listed the house themselves. Though the Buyer should be able to expect to be treated with honesty, they have no representation or protection whatsoever in a sub-agency relationship. Obviously, Sub-Agency has distinct disadvantages to Buyers and has largely been phased out, or made illegal, in much of the country, making way for single- or dual/transactional agency (see below). However, in parts of West Virginia it is not uncommon. Beware being in a sub-agency relationship. You are in no way represented or protected by a professional in this type of transaction, in which both Agents work for the Seller! It is my belief this antiquated form of agency is in direct opposition to the standards of service a Realtor should uphold.

Dual-Agency – Also known as "Transactional Agency" or "Transactional Brokerage" in some states. In this form of representation, the Agent does not favor one party to the transaction over another; their loyalty and fiduciary duties are more limited, divided equally, and they act to simplyfacilitate the transaction, rather than on behalf of one particular party. It is a fair and level playing field and common in many states. Normally, the Seller pays the Dual Agent's commission, and all parties must agree in writing to Dual Agency.

If you are buying or selling a home, be sure the Agent clearly explains for whom they are working, in what capacity, and what services and loyalties you can expect, right from the start. Though the law does not require disclosure of this information until just before a contract is signed, you need to know who has your back from the get-go.

I have undergone extensive non-compulsory training in order to achieve the designation of Accredited Buyer's Representative (ABR). When working with Buyers on homes not listed by Heritage Real Estate Co., I work as a Buyer's Representative, preferring to take a smaller commission, if necessary, in order to provide you with better service and more fair representation. But whether I represent the Buyer, the Seller, or both, I treat all parties with utmost honesty, customer service, and prompt disclosure of which party I am representing.

If I you have questions, please feel free to drop me a line.

NOTE: This brief outline is not meant to be all-inclusive, nor to constitute legal advice. For the sake of simplicity, except where noted, the outline applies to West Virginia, rather than national, practices. For complete legal information, and state-specific practices, please consult with a professional in your area. In West Virginia, visit the West Virginia Real Estate Commission at www.wvrec.org

(c) Heather Neill, 2016