Dual agency requires written consent
Dual agency exists when one broker has client relationships with both parties. Georgia permits it only with the written consent of all clients. Oral consent fails, and acting for more than one party without express written consent of all is an unfair trade practice. There is no GREC approval process, and the payer's consent alone is never enough.
The written consent must include:
- A description of the transactions involved.
- A statement that the broker represents two clients whose interests are or at times could be different or even adverse.
- Disclosure of adverse material facts and material relationships.
- A statement that consent was not required and was given voluntarily.
Georgia rule: designated agency is not dual agency
When office policy lets a broker assign one affiliated licensee to the seller and another to the buyer, Georgia calls that designated agency: neither the broker, the licensees, nor the firm is deemed a dual agent, knowledge is not imputed among them, and each keeps its client's confidences. Calling it dual agency requiring the consent disclosures is the most common confusion.
A designated agent is one or more licensees affiliated with a broker assigned to represent solely one client, so a broker may not personally serve as a designated agent while assigning a licensee to the other side. Neither consent nor office policy overrides that definition.
Transaction brokers and ministerial acts
A transaction broker has no client relationship with either party but still must timely present all offers, timely account for money and property received, disclose to buyers and tenants all adverse material facts actually known about the property's physical condition and adverse physical conditions in the neighborhood within one mile, and never knowingly give false information. Loyalty, confidentiality of the seller's lowest acceptable price, and obedience are client-level duties it does not owe. The error is assuming no agency means no duties at all.
Ministerial acts include providing pre-printed form contracts, real estate statistics and property information, and locating inspectors. Doing them for the other party neither violates the broker's engagement nor creates one.