Dual agency in Massachusetts, and why it matters

Massachusetts recognises four relationships, not two.

Under 254 CMR 3.00(13) an agent can be your sole agent, a designated agent, a dual agent representing both sides, or a facilitator representing neither. Dual agency and designated agency sound alike and are routinely conflated, but they are not the same arrangement.

Sole agency is the arrangement most people assume they have: one agent, representing you, owing you undivided loyalty.

Designated agency is where the brokerage is on both sides but two different agents are appointed, one to each party. Each designated agent can advocate fully for their own client. Where both parties have consented to designated agency, the regulation does not require a separate consent to dual agency for the appointing broker.

Dual agency is one agent, both sides. This is the one that costs you something, and it is permitted only with informed written consent from both parties.

Facilitation is an agent representing neither party — helping the transaction happen without owing either side the duties of an agent.

If you remember one thing: designated agency is usually workable, dual agency is a genuine trade, and the two get described interchangeably by people who should know better.

What a dual agent stops being able to do.

254 CMR 3.00(13)(b) requires the consent form to disclose that a dual agent cannot fully satisfy the duties of loyalty and full disclosure to either party. Confidentiality and accounting for funds survive; advocacy on price does not.

This is not a technicality. Advocacy on price is most of what you are hiring an agent for. An agent who knows the seller will accept less cannot tell you, because they owe the seller confidentiality. An agent who knows you would pay more cannot tell the seller, for the same reason. Both parties end up with a well-informed intermediary who is professionally prohibited from using what they know on either behalf.

What survives is real but narrower: the agent still owes both parties confidentiality, still must account for funds, and still has to run a competent transaction. On a straightforward deal where price is already agreed, that can be perfectly adequate.

The situation where it is least adequate is a negotiation you expect to be contested — a property that has sat, a bidding situation, an inspection that turns up something. Those are exactly the moments you wanted advocacy for, and exactly the moments a dual agent has to stay neutral.

When you will be asked, and why it happens.

Dual agency usually arises when you want to see a home your own agent or brokerage has listed. It is not a trap — it is a structural consequence of a brokerage having inventory — but the consent is often collected in advance, buried in a representation agreement.

The common path is innocuous. You engage an agent, they show you homes, and one of the homes is their own listing or a colleague's. At that point somebody needs consent, and you get handed a form at a showing.

The less obvious path is that consent was collected in advance. Some buyer representation agreements include a dual-agency consent clause covering the possibility before it arises. That is permitted — the regulation contemplates advance consent and requires written notice before the parties enter a purchase agreement — but it means you may have already consented without registering that you did.

Ask at the interview what the brokerage's default is and what happens if you want to see one of their own listings. It is on the list of questions worth asking for exactly this reason.

Questions about agency in Massachusetts.