salesagent,broker....

California Real Estate Law 2013

Principal seeks to sell to, buy from, or exchange with a third party real property.  (买家，卖家，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 在地产交易中作为衡量经纪是否违反Real Estate Law的准则，卖方经纪必须代表卖方权益，买方经纪必须代表买方权益，dual agency必须同时代表买方和卖方的权益，无论经纪是上述三种的任何一种，都不能出自个人利益，损害Principal的权益）

In most real property transactions, the real estate broker acts as an agent for the principal. (broker 是买家或卖家的经纪，可以是个人，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的经纪，不能独立买卖房产，必须依附在broker名下。salespersons大部分是以contractor形式和broker签约，少部分salesperson 和broker 具有雇佣关系(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. （在任何地产交易中，broker要为salesperson的商业行为负责。当salesperson对买家或卖家疏忽职守，broker也要承担和salesperson一样的责任）

Broker associates act as agents of the responsible broker in the same manner as salespersons. (拥有broker license, 附属于brokerage firm 或另一个broker)

Listing agent acts exclusively for the seller.  （代表卖方权益的agent, 另一种普遍叫法是seller’s agent）

Selling agent acts exclusively for the buyer.  (代表买方权益的agent, 另一种普遍叫法是 buyer’s agent)

Dual agent acts for both the buyer and seller.  (法律上同时代表买方和卖方权益。**dual agency 很容易陷入conflict of interest的窘境。实际交易中大部分是为seller权益考虑，占极大比例的dual agent lawsuit 都源自于listing agent未向卖家公布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 是指那些既是买方经纪又是卖方经纪的listing broker。作为dual agency的listing broker可以为买方寻找任何房子)

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个broker 契约下面，不同的拥有房产交易执照各自代表卖方和不同买方的经纪们)

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. (作为dual agent 的listing broker 可以有两个以上的买方，但是这种复杂关系常常会模糊经纪的职责，为了避免这种复杂关系引起法律纠纷，通常由其他在同一个Broker 契约底下，在同一个office工作的其他拥有房产交易执照的salesperson or broker associate 来代表不同的买方经纪)

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，被要求对买方和卖方的交易保持公平，维护两方相等的权益，然而在实际交易中，seller常常是权益得到保护最多的一方。法律下，dual agent必须得到买方和卖方两方的书面同意，愿意接受dual agency）