One broker, two clients
When both sides are clients of one broker, BRRETA supplies three arrangements — dual agency, designated agency and transaction brokerage — and the exam turns on the differences.
Dual agency: written consent with six elements
O.C.G.A. 10-6A-12(a) permits dual agency only with the written consent of both clients, and that consent must contain six specified statements, including that the client does not have to consent and that consent is given voluntarily.
- Oral consent noted in the file fails; acting for more than one party without the express written consent of all parties is an unfair trade practice.
- Consent from only the party paying the commission fails, because under 10-6A-11 compensation does not determine relationships.
- No GREC approval step exists.
Designated agency is not dual agency
O.C.G.A. 10-6A-13 lets a broker assign one licensee to the seller and another to the buyer in the same transaction. When designated agents are assigned, neither the broker, the broker's licensees, nor the firm shall be deemed dual agents, and knowledge is not imputed among them.
The trap: swapping designated agency for dual agency and demanding the six-element consent. Designated agency is expressly authorized, so it is not an unfair trade practice, and it is not transaction brokerage, since both parties are clients.
Ministerial acts and transaction brokerage
O.C.G.A. 10-6A-14 lets a broker with no client perform ministerial acts for either or both parties as a transaction broker: identifying property, providing pre-printed forms, acting as a scribe, and locating or referring service providers.
Compensation proves nothing
O.C.G.A. 10-6A-11 states that payment or promise of payment of compensation to a broker shall not determine whether a brokerage relationship has been created. A seller's co-op fee offered through the MLS does not make the buyer's broker a subagent of the seller — the leading pre-BRRETA distractor. Subagency requires a written agreement. Nor does the offer create dual agency for the listing broker, and the cooperating broker is not the seller's customer; that term describes a party who has not entered a brokerage engagement.