Dear Heather,

I am going to put my house on the market for sale. I want to hire a real estate agent but my question is this: who does an agent represent? And must they disclose everything that is not working in the property?

Seller

Dear Seller,

When you enter into discussions with a real estate agent regarding listing your property with them, the agent should make it very clear who they represent.

Typically, in Bermuda, the agent represents the seller, and the seller signs a listing agreement with the agent authorising them to market the property on their behalf. Where a listing agreement exists between an agent and a seller, the agency and their sales representatives owe a fiduciary duty of loyalty, obedience and confidentiality, advice and reasonable care to the client (the seller).

However, regardless of which party the agent is representing, the agent and their sales representatives are also required to treat all parties honestly and to deal in good faith. Agents must promptly present all offers, answer truthfully to questions concerning the property and offer their services without discrimination. Any sales agent or representative is bound to disclose any information they have regarding the condition of the property when asked. There are some cases where the owner (and their agent) may not know everything about the property, such as when it is in a trust or inherited by a relative who lives overseas. In these instances we follow the law of “buyer beware”.

It is vital that the buyer makes sure all descriptions reference to condition and necessary permissions for use and occupation be satisfied by inspection or otherwise by competent professionals deemed acceptable by themselves as the prospective purchasers. Agents are not qualified to give legal, tax, engineering or construction advice.

It is normal for a buyer to have a legal representative assist them with any matter pertaining to the sale and purchase agreement, the conveyance and any other aspect of the transaction.

The market is now moving more quickly than it was, so buyers should also be aware that all offers are subject to contract and are not binding until a sales contract has been signed by both the purchaser and the seller, and a ten per cent deposit has been received. There is a timeframe here while the paperwork is being reviewed, etc that can leave both the buyer and the seller in a precarious position. A good legal representative will move quickly to protect their client’s interests.

Make sure the listing agent you choose will provide regular written updates and explain the sales process to you. The agent’s job is to help you maximise your proceeds while minimising the time on market.

• Heather Chilvers is among Coldwell Banker Bermuda Realty’s leading sales representatives. If you have a question for Heather, please contact her at hchilvers@brcl.bm or 332-1793.