FACTS: A licensee lists her house for sale. She decides to hold an open house to try and procure a buyer for the property.

ISSUE: Can a licensee hold an open house to procure a buyer for her own personal property?

ANSWER: See Discussion.

DISCUSSION:         

First, there is nothing that would prevent the licensee from holding an open house if the licensee is clear that she does not represent any buyer that enters the open house. An agency discussion should be held as soon as possible to clarify agency.

Dual agency imposes restrictions on the conduct of a licensee, such as not favoring one party over another, nor disclosing confidential information. See Haymes v. Rogers, 70 Ariz. 408, 222 P.2d 789 (1950). Ordinarily, dual agency is not a problem.  In fact, dual agency is authorized by Arizona law with the written consent of both parties. See A.A.C. R4-28-1101(F). However, in some circumstances, dual agency and representation is improper. The Arizona Court of Appeals states that, while dual agency is permitted by Arizona law, judicial skepticism of this arrangement exists. See Marmis v. Solot Co., 117 Ariz. 499, 503, 573 P.2d 899, 903 (App.  1977).

Here, the licensee should be aware that the law of agency prohibits dual agency when a licensee has ownership interest, as it violates a licensee’s fiduciary duty to the client. The agent’s ownership presents an unwaivable conflict, and the licensee cannot agree to represent herself, and the buyer, equally. For these reasons, an agent should not represent a buyer as a dual agent when the licensee has an ownership interest in the property being conveyed.