Whether a dual agent's conflict shrinks or grows when the deal is priced already and the real negotiation is in a seller carry note

The note is the asset and the agent is not the one who has to live in it. Carrybacks that get shopped to note buyers later are instructive: the hardest ones to move are the ones where the document is three pages and reads like a form. Missing late fee mechanics, acceleration language no holder would want to rely on, no clarity on who holds insurance proceeds after a casualty. None of that is bad faith. It is what happens when nobody is paid to fight about it. So the answer to the question is that the dual agency is close to irrelevant here and the drafting question is the whole thing. Get an attorney who does carrybacks in that state to draft or at least mark up, because note enforcement and foreclosure procedure differ by state and the form the agent hands over may have been written for a different one. Your agent, whoever she represents, is not the person who should be producing that document.

In the markets I buy land in there's often one brokerage that has been there forty years and every private seller over seventy calls them first. I've closed twice with the same person on both sides and I don't regret either one, because the alternative wasn't a sharper buyer's agent, it was no access to the seller at all.

What I did both times was move the negotiating work off the agent. I asked my questions in writing, directly, and I let the silence sit. A dual agent won't carry your argument for you. She'll pass a written question along, and sometimes that's enough.

The distinction you're drawing is real, and it depends on how your state defines the dual agent's duty.

Most consent forms restrict a dual agent from disclosing price motivation and from advocating for one party against the other. Some state statutes and many brokerage forms extend that to terms of sale, which in a carryback would include interest rate, balloon date, and prepay. Others are written around price and are silent on structure. That difference is the assumption your whole question rests on, so read the form you're being asked to sign and ask the broker in writing which category their form falls into. What a dual agent may and may not do varies by state, and a broker telling you verbally is worth nothing later.

On the economics, the post-settlement disclosure regime means the compensation on both sides has to be in writing in front of you. Use that. If the same brokerage is collecting both sides on a seller-financed deal, the total dollars are visible and you can ask what the buy-side portion is buying you when the agent has told you she won't advocate on price.

The structural point about terms being harder to benchmark holds. Price has comps. A 6 year balloon has no comp. Nobody in the transaction is compensated for arguing about the cure period, which is why that clause tends to arrive in whatever shape the form generated it in.

The practical answer used most often is designated agency, where the brokerage assigns a second agent to your side. Whether that's available depends on state law and on whether the office has another licensee free to take it.

On same brokerage deals, the thing that goes wrong is diligence far more often than price. Estoppels come back late or never come back at all. The rent roll matches the leases only if nobody reads the leases, and nobody chases any of it because nobody on the file has an incentive to slow the closing down. Vellum, on a mixed use building with a carryback, the tenant files should be verified by someone whose paycheck is not in the closing.

Where it bit me was a repair credit. Inspection turned up a roof with maybe two years left and I asked for $18k. The dual agent's response was to explain the seller's position back to me, twice, in a friendly voice. She never carried my number over as a number. Ended up at $6k and I'm still not sure the seller ever heard the $18k in a sentence that had force behind it.

Your price is fixed so maybe that doesn't apply. But if your inspection turns anything up, whatever you were going to ask for gets softened on the way across the table.

Harrow's point is the real one. On the construction side, a familiar pattern is a dual agent taking a detailed scope estimate from the buyer's GC and summarizing it to the seller as some roof concerns. That is not lying. It is simply what happens when nobody's job is to make the seller uncomfortable.

A useful check in this situation is the listing brokerage's both sides closing rate, and it is a hard number to build in a non disclosure state, where sale prices are not public and the data needed to count it is not there. Has anyone in the room found a workaround short of asking the broker directly?

Dumb question. If the agent says she won't advocate on price for either side, who does advocate? Does the deal just sit at whatever number the seller said first?

Ember, more or less yes, that is the design. The consent form is the agent telling you she has become a coordinator instead of a negotiator. Some people want exactly that and pay for it happily, which is why this thread has two sides.

Putting a number on this is harder than it looks. To price the conflict you need to know what a buyer's agent would have gotten you, which is unknowable, so you end up guessing. What can be priced is the rate. Take a $340k carryback: moving 6.5 to 6.0 is about $1,700 a year in the buyer's pocket. That is a real number, and it is exactly the kind of thing nobody argues for when the same person holds both sides. Vellum, run your term sheet at three rates and two balloon dates and look at what the spread is worth. Then decide whether you would pay a buyer's agent that amount to fight for it.

I take dual agents fairly often and I'll defend it. My margins are thin and my edge is speed. When I'm the one who can close in eleven days and the listing agent knows she keeps both sides, my offer gets walked to the seller with enthusiasm and the other three don't. I've lost money on price and made it back on being first.

That only works if you already know your number cold and don't need anyone to find it for you. If you need advocacy, don't sign the form.

Flint, that's real but it's also the exact reason the practice is under pressure. You're describing paying for preferential treatment with commission dollars, and enthusiasm from the listing agent is not the same as the seller getting your terms accurately. I've been on the other end of your version, where the fast offer got the nod and my cleaner one never got explained.

I'm not saying you're wrong to do it. I'm saying that's steering with better manners.

A version of this comes up constantly. Same brokerage on both sides, designated agents on paper, and the two of them share a desk pod. The buyer's agent mentions the seller probably has room, then walks it back the next day as if he had remembered something. Whatever wall exists in that office, it is not soundproof.

Quarry, is that something you can even complain about, or is it just how it goes?

Rigging, in most states the answer is a complaint to the licensing board, and whether it goes anywhere depends on the state's rules and on there being something in writing. A handful of states ban dual agency for residential outright and a few more restrict it hard, so the whole question of what's actionable changes depending where you are. Verify against your own state's current rules rather than anything in this thread.

The thing I've never understood: why would a seller agree to this? The seller has the agent's loyalty already. Signing the consent form means giving up an advocate they were paying for. What do they get?

Compass, in a dual-agency setup the seller often gets certainty and sometimes a lower total commission, because the brokerage will shave when it is keeping both sides. Whether that shave is worth losing the negotiator is the same argument being made from the other chair.

In offices that run this way, the pressure to double-side a file comes from the top more than from individual agents. Both sides on one closing is the cheapest file a brokerage can produce. Nobody sits an agent down and says do it, they just praise the ones who do.

Windlass, that rate math helped me more than anything else here. I'd been thinking about this as a fairness question and it's a dollars question.

Numbers on a small sample, so treat this as anecdote. Across six same-brokerage closings compared with arm's length ones in the same market, the same-brokerage deals cleared about 1.5 to 2 percent higher relative to an independent estimate of value. Call it $9k on a $500k building. Total commission on those deals was lower by roughly half a point, so the seller kept a little and the buyer paid a little. Vellum, on a carryback that transfer tends to show up in the rate instead of the price, which makes it invisible unless you go looking. Ask for the rate you want in writing and see whether the answer is a negotiation or an explanation.

Ledger's last line is the test. If the reply to your term sheet is an explanation of the seller's feelings, you have your answer about what you bought.

The person who benefits from the deal closing is never the person who slows it down. That doesn't make them crooked. It makes them the wrong person to ask whether you should walk. Vellum, hire the attorney for the note and let the agent do the scheduling.