The National Association of Realtors indicates that fiduciary duties cover six distinct areas: loyalty, confidentiality, disclosure, obedience, reasonable care and diligence, and accounting. Some—but not all—of these duties are self-explanatory.
Loyalty means a Realtor must act in the best interest of his clients, including placing their client interests above their own. So, for example, if an agent is interested in buying a house that he knows is perfect for one of his clients, he must give the client priority and refrain from making an offer unless and until the client rejects the house.
Confidentiality means Realtors must safeguard their clients’ secrets. Agents often know the lowest price that a seller-client will take, for example, but the agent must keep it a secret. Likewise, if a seller must sell due to an emergency, the agent may not reveal the seller’s distress. Buyer’s agents must also keep their client’s secrets. For example, the highest price that a buyer is willing to pay and that the buyer loves a given house are secrets.
Disclosure means that the Realtor is required to disclose affirmatively all information concerning the transaction as well as the property which might affect the decisions a principal makes, informing the principal what the Realtor knows.
Obedience requires an agent to carry out his client’s legal wishes. No agent is ever obligated to violate the law. In fact, the law calls for fair and honest dealing, no matter whom the agent represents. So if a seller tells an agent to lie about a leaking roof, he is under no obligation to do so. However, if a seller tells her agent to list a house at a given price, the agent must obey. If the price is unreasonable, the agent should encourage the seller to reconsider the price or do as the seller asks, but the agent cannot list it at a different price.
Realtors are obligated to use reasonable care and diligence in pursuing the principal’s affairs. The standard of care expected of a real estate broker representing a seller or buyer is that of a competent real estate professional. By reason of his license, a Realtor is deemed to have skill and expertise in real estate matters superior to that of the average person. As an agent representing others in their real estate dealings, a broker or salesperson is under a duty to use his superior skill and knowledge while pursuing his principal’s affairs. This duty includes an obligation to affirmatively discover facts relating to his principal’s affairs that a reasonable and prudent real estate broker would be expected to investigate. Simply put, this is the same duty any professional, such as a doctor or lawyer, owes to his patient or client.
The duty of accounting means that the agent must account for money and property entrusted to her. Agents must give escrow funds to their brokers or to the client’s attorney who will keep it in an escrow fund. Listing agents must keep track of showings so that they have a record of who has come and gone. They must also ensure that a listed house is secure, either by signing out keys to other licensed agents and accounting for their whereabouts or by hanging a lockbox on the property.
The Bottom Line: Fiduciary abuse is against the law and can leave an agent open to a lawsuit, and it destroys the professional and ethical standing of the real estate agent. As a Realtor, you should always be aware of your fiduciary duties to your clients. It’s a major responsibility and upholding these duties is crucial to developing a strong reputation.