As a Buyer-Broker, would you accept or offer to attach a Schedule "A" to your "Buyer Representation Agreement" that entitles the Buyer to terminate said agreement in the event of a "Conflict of Interest" and/or a "Breach of your Fiduciary Duty" ?

No. We have automatic fallback positions (Transaction Broker or Designated Broker) signed and agreed to by the buyer, that are not considered a "conflict of interest" or "breach of fiduciary duty" in our state.

I typically insert a little clause in the Buyer Broker Agreement, as it is Drafted, which says it " . . . . will become Null and Void in the event that the Buyer becomes interested in pursuing any property which is listed . . . ." by my Agency.

This technique hasn't been challenged . . . . YET; but I've used it a few hundred times; and Buyers have seen the practicality of it once it is explained. No Attorney here has questioned it.

One thing I have felt uncomfortable about is when we go out and list something BECAUSE we have a Buyer in tow who wants that kind of property, and the question could arise as to whether we can possibly have an allegiance to that Seller IF we first had the Buyer in a Buyer Broker Agreement and then listed a match.

I'd rather deal with the Seller as a FSBO until the Buyer-Client has discounted his pursuit of the Subject Property . . . . and then consumate a Listing with the Seller.

Vermont007: In essence, the purpose and intent of your clause is to enable you to “switch horses in midstream” and then enter a self-serving and more profitable “duel agency” relationship, and hopefully avoid any liability.

Unfortunately, where agency law prevails, some smart enterprising lawyer may come along and argue that once a fiduciary relationship is established either by contract or by implication, the contract itself, may end either by fulfilment or by termination, but the fiduciary duty remains in perpetuity.

Briefly, the desired Schedule "A" clause is inserted for the benefit of the Client and not the agent, as it enables the Client, by his own volition to terminate the agreement and seek independent representation by another agent, or wave it as he choses.

Important Notice: This information is provided as basic educational information by the author and is not a substitute for the advice of an expert and/or the advice of a lawyer. There is NO representation as to legality, accuracy, correctness of the herein information and the reader is strongly urged to consult a lawyer in the relevant jurisdiction to ensure accuracy before acting on this
information

We only act as non exclusive buyer reps. They get the same protection without the obligation. This way they can walk whenever they want to or vice-a-versa.

I think I agree wholeheartedly with you D.A.; EXCEPT your comment about my attempt to because as I said above, I insert my Clause in the Buyer Broker Agreement “as it is drafted” . . . . which means, at the beginning, in the bright light of Day, BEFORE anything is signed by the Buyer. So it actually serves as the same Self-Termination function that you recommend with your “Schedule A” . . . . meaning that any Buyer who is interested in one of our Listings is then at liberty to "seek independent representation by another agent elsewhere".

I confess to doing many things which are as I am in business for mySELF. I perform services for many Buyers and Sellers; but much of what I do is indeed Self-Serving . . . . it has to be in order for me to stay in Business.

I always shy away from The last time I was in a “duel”, it was at a Free-Fire Sector in a Combat Zone in VietNam . . . . No more duels for me ! And Dual Agency is specifically forbidden in my Vermont Jurisdiction; so I won’t be going there either.

As we enter the Halloween Season, I am ever conscious of the many threatening legal specters that continuously hover over those of us who try to practice in this business called Real Estate, threatening our every move. I take as many precautions as I can; but to focus so much attention on these demons can completely cripple us in the conduct of our activities . . . . We will die the proverbial 1000 Deaths before taking Action. When it gets to that point, I too will the White Flag and shut down. Until that point is encountered, I will remain vigilant and do the best job I can . . . . Self-Serving as it might be !

I anticipate someday having that “duel” withbut I’m not losing much sleep over it. The Counsel I have on retainer doesn’t think there is much likelihood of that happening; but it could. So could a thousand other bad things ! But, in the meantime, I can't nickel and dime myself out of business worrying !

Thank you for your observations !

Vermont007:

As the dedicated professional that you are, I am confident that you both weigh and distinguished the difference between the possibility and the probability of risk in any given situation.

In this venue, my comments are directed solely at alerting the reader to the possibilities of risk, as opposed to any criticism and strictly for the purpose of education.

Schedule "A"
In certain instance, where I have found the consumers to be hesitant to execute either a Listing Agreement and/or a Buyer Representation Agreement and the binding nature of such contracts, I have found them to be more receptive and actually signing the aforesaid agreements after, I had introduced them to my specifically prepared Schedule “A” which I attach to their agreements and allowing them to terminate said agreements without cost or obligation, in the event a conflict of interest should arise or a breach of fiduciary duty should occur.

(a copy has been sent to you for your review and comments)

Important Notice: This information is provided as basic educational information by the author and is not a substitute for the advice of an expert and/or the advice of a lawyer. There is NO representation as to legality, accuracy, correctness of the herein information and the reader is strongly urged to consult a lawyer in the relevant jurisdiction to ensure accuracy before acting on this
information