FACTS:                    

The buyer’s agent presented an offer on a property that was for sale by owner (“FSBO”).  In connection with the Purchase Contract, the seller executed the Arizona REALTOR® Unrepresented Seller Consent.  During the course of the escrow, the seller has asked the agent multiple questions regarding price, a response to the Buyer’s Inspection Notice and Seller Response, repairs to be made and title issues.  The buyer’s agent has answered some but not all of the questions posed by the seller. 

ISSUE:                      

Has the buyer’s agent created an implied dual agency by assisting the unrepresented seller even though the parties signed the Unrepresented Seller Compensation Consent Agreement addressing the various duties owed?

ANSWER:                

See discussion.

DISCUSSION:         

Agency can be either expressed or implied.  Warren v. Mangels Realty, 23 Ariz. App. 318, 533 P.2d 78 (App 1978).  Providing advice to and otherwise assisting an unrepresented seller could give rise to an implied agency relationship with that seller.  Haldiman vs. Gosnell, 155 Ariz. 585, 748 P.2d 1209 (1988.).  The buyer’s agent should therefore provide no further assistance to the seller and should also remind the seller, in writing, that the buyer’s agent is not representing the seller in the transaction.