salesagent,broker....

California Real Estate Law 2013

Principal seeks to sell to, buy from, or exchange with a third party real property.  (買家，賣家，1031 exchange)

An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.  In an agency relationship, the principal delegates to the agent the right to act on his or her behalf, and to exercise some degree of discretion while so acting.

An agency relationship creates a fiduciary duty owed by the agent to the principal within the course and scope of the agency and the authority granted by the principal. The fiduciary duty owed by real estate brokers to their principals has been compared by the courts to the duty owed to the beneficiaries by a trustee under a trust. A fiduciary relationship is "one founded on trust or confidence reposed by one person in the integrity and fidelity of another". A fiduciary has a duty to act primarily for the principal’s benefit in matters connected with the undertaking and not for the fiduciary's own personal interest.  (fiduciary duty 在地產交易中作為衡量經紀是否違反Real Estate Law的準則，賣方經紀必須代表賣方權益，買方經紀必須代表買方權益，dual agency必須同時代表買方和賣方的權益，無論經紀是上述三種的任何一種，都不能出自個人利益，損害Principal的權益）

In most real property transactions, the real estate broker acts as an agent for the principal. (broker 是買家或賣家的經紀，可以是個人，也可以是公司形式)

The real estate salesperson is an agent of the real estate broker, regardless of whether he or she is an employee for purposes of the Real Estate Law, or an independent contractor of the real estate broker for federal and state income tax reporting purposes. （salesperson是 broker的經紀，不能獨立買賣房產，必須依附在broker名下。salespersons大部分是以contractor形式和broker簽約，少部分salesperson 和broker 具有雇傭關係(employer-employee)）

The real estate broker in the real property transaction is responsible for his or her salesperson who acts as an agent of the broker. When a salesperson owes a duty to the buyer, the seller, or to any principal or party in a real property transaction, the duty is equivalent to the duty owed by the real estate broker for whom the salesperson acts. （在任何地產交易中，broker要為salesperson的商業行為負責。當salesperson對買家或賣家疏忽職守，broker也要承擔和salesperson一樣的責任）

Broker associates act as agents of the responsible broker in the same manner as salespersons. (擁有broker license, 附屬於brokerage firm 或另一個broker)

Listing agent acts exclusively for the seller.  （代表賣方權益的agent, 另一種普遍叫法是seller’s agent）

Selling agent acts exclusively for the buyer.  (代表買方權益的agent, 另一種普遍叫法是 buyer’s agent)

Dual agent acts for both the buyer and seller.  (法律上同時代表買方和賣方權益。**dual agency 很容易陷入conflict of interest的窘境。實際交易中大部分是為seller權益考慮，占極大比例的dual agent lawsuit 都源自於listing agent未向賣家公布dual agency relationship)

1) Dual agency arises where the listing broker who is the actual agent of the seller becomes the actual agent, or ostensible or implied agent of the buyer. The real estate broker who has entered into a listing agreement with a seller, establishes an actual agency relationship with the seller. The listing broker may also establish an actual agency relationship with the buyer as the result of the broker accepting the responsibility to act on behalf of the buyer to locate a property.  (dual agency 是指那些既是買方經紀又是賣方經紀的listing broker。作為dual agency的listing broker可以為買方尋找任何房子)

2) Dual agency also commonly arises when two licensees associated with the same broker undertake to represent two or more parties to a real property or real property secured transaction. The real estate broker with whom the two licensees are associated is the dual agent of the principals to the transaction, and the salesperson and broker associate licensees are the agents of the real estate broker. (dual agency也可以是指那些在同一個broker 契約下麵，不同的擁有房產交易執照各自代表賣方和不同買方的經紀們)

3) A listing broker who is also a selling broker is a dual agent and may not be the agent for a buyer only.   A form of dual agency which has not been specifically addressed in the disclosure statutes is where the broker attempts to present offers on behalf of two different buyers. This can easily happen when a broker is showing the same property to buyer 1 and buyer 2, and both buyers want the broker to write an offer on the property on their behalf. The situation becomes even worse if buyer 1 is in contract and buyer 2 makes a back-up offer.  Buyer 1's position is almost certainly weakened and buyer 1 would have good reason to claim that the real estate broker breached the broker's fiduciary duties and obligations by participating in the transaction on behalf of buyer 2.

The better practice would be for the real estate broker to avoid attempting to represent two buyers on the same property without the clear, informed and unequivocal consent of both parties. It is recommended that when acting as an agent for more than one buyer regarding the same property, the buyers should be sophisticated, or AGENCY they should be represented by independent professionals. Some have suggested that dual agency conflicts may be mitigated by assigning separate salespersons or broker associates within the same office to each principal to the real property or real property secured transaction. Under these circumstances, each principal would receive the benefit of an individual presumably concerned only about their interest. However, individually assigning salespersons or broker associates to the principals does not alter the fact that the real estate broker by whom the associate licensee is engaged is the dual agent of the principals to the transaction. (作為dual agent 的listing broker 可以有兩個以上的買方，但是這種複雜關係常常會模糊經紀的職責，為了避免這種複雜關係引起法律糾紛，通常由其他在同一個Broker 契約底下，在同一個office工作的其他擁有房產交易執照的salesperson or broker associate 來代表不同的買方經紀)

In any dual agency situation, the broker owes fiduciary duties to both principals to the real property or real property secured transaction. A real estate broker functioning as a dual agent may not disclose to the seller that the buyer is willing to pay more the buyer's written offer to purchase, nor may a dual agent disclose to the buyer that the seller will take less than that which is set forth in the listing agreement, without the express written consent of the party authorizing the disclosure (this limitation in effect prevents the broker, when acting as a dual agent, from negotiating the price and related financial terms on behalf of either the seller or buyer or both).（dual agent 在法律下，被要求對買方和賣方的交易保持公平，維護兩方相等的權益，然而在實際交易中，seller常常是權益得到保護最多的一方。法律下，dual agent必須得到買方和賣方兩方的書麵同意，願意接受dual agency）