The broker is the agent
When a salesperson signs a seller to a listing, the agency runs between the seller and the broker the salesperson is affiliated with. The listing is a contract between seller and broker, and the licensee acts through the broker. The classic trap: the salesperson does the work, but that authority flows from the broker.
How agency is created
- Implied agency is inferred from conduct, not from express adoption of a specific act.
- Agency by ratification arises when a principal later approves and adopts an unauthorized act done in the principal's name, creating the agency retroactively for that act. An owner who signs an offer a licensee submitted without authority has ratified.
- Agency by estoppel also operates after the fact, but depends on the principal's earlier conduct leading a third party to believe an agency existed.
- Agency coupled with an interest requires the agent to hold a financial interest in the subject.
Georgia rule: writing required
Common law lets an oral agreement to represent stand. BRRETA does not. In Georgia, agency means representation by the client's written authority, and a brokerage engagement is a written contract; a customer relationship may be verbal or written. A buyer who orally says "you represent me," and gets an oral yes, is a customer. "Client, because oral agreements are enforceable" is the Georgia trap.
BRRETA also says a broker is not deemed to have a fiduciary relationship with any party, but is responsible only for reasonable care in discharging its specified duties. Brokers still owe customers honesty and disclosure of known adverse material facts with no engagement.
Pay does not equal representation
Payment or promise of compensation by a seller, landlord, buyer or tenant shall not determine whether a brokerage relationship was created; intent and the written engagement control. A seller paying the buyer's broker does not make that broker a subagent or dual agent.
No broker is a subagent of another broker's client solely by membership in a common source information company such as an MLS, which creates no implied engagement.