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Agency and fiduciary duties, explained

Agency is the single most reliably tested topic on the real-estate exam, and the one where careless reading costs the most marks. Almost every agency question reduces to one thing: who is your client, and what do you therefore owe them?

Client versus customer — the distinction everything hangs on

A client is the party you represent. You owe them the full set of fiduciary duties. A customer is a party you work with but do not represent. You owe them honesty, fair dealing and disclosure of material facts — but not loyalty or confidentiality.

Exam questions love to describe a friendly, helpful interaction with a buyer and then ask what you owe them. Helpfulness does not create representation. A representation agreement does.

The fiduciary duties

Different states teach different mnemonics, but the substance is consistent:

Note the tension the exam exploits: you owe your client confidentiality and your customer disclosure of material facts. Knowing the seller will accept less is confidential. Knowing the roof leaks is a material fact you must disclose to anyone.

Types of agency

Which of these your state permits, and what disclosure it requires, is state-portion material. Check your own state's rules rather than assuming.

When agency ends — and what survives

An agency relationship terminates by completion, expiration, mutual agreement, revocation or renunciation, or by death or incapacity. One duty outlives it: confidentiality. Information your client gave you in confidence stays confidential after the relationship ends.

How agency questions are usually written

The typical question is a short scenario ending in "what should the licensee do?". Work it in this order:

  1. Identify who the licensee represents
  2. Decide whether the other party is a client or a customer
  3. Ask which duty the scenario is testing — usually confidentiality, disclosure or loyalty
  4. Check whether the answer requires written consent or disclosure, which is a common trap

Keep going

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