Representing both the buyer and the seller on a single transaction goes by a number of colorful terms in industry lingo. Double dipping, dual representation and my favorite, double popping.
Double popping, I think, embodies the inherent conflict of interest and sounds as ugly as it actually is. There is a definite negative connotation to the practice, and I am here to tell you it is earned.
And I’m writing about this because I am staring at it on one of my own listings. The seller is offering a buyer’s agent commission, and I’ve been telling unrepresented buyers to get an agent as it won’t cost them anything. That hasn’t been a successful strategy so far.
The property is taking too long to sell. The seller is getting frustrated, and my job is to sell it. The easiest way for me to do that is to offer to represent the next unrepresented buyer that calls.
Is it legal?
The legality of the practice depends entirely on where the property lives. Eight states have banned dual agency outright: Alaska, Colorado, Florida, Kansas, Maryland, Texas, Vermont and Wyoming. That is eight states that looked at this arrangement and decided the conflict of interest was too dangerous to allow. The remaining states permit it with varying levels of disclosure.
This is not an ideal situation for anyone. It triggers additional disclosure to both parties. It requires informed written consent from both sides. And it forces agents to walk a line that most of us are trained not to walk.
Disclosures and informed consent
My expertise lives where I do, California, and I’m leaning heavily on what agents do to be in compliance here. The very first form for every listing agreement and purchase agreement generated using the California Association of Realtors (CAR) forms is the Disclosure Regarding Real Estate Agency Relationship (AD).
The form breaks down the duties of the Seller’s Agent, Buyer’s Agent and Agent Representing Both Seller and Buyer. I do my best to explain the form to my clients and am happy to get smiles and nods but acknowledgement is not informed consent.
I have yet to run across a client who fully understands what dual agency means, even after they sign the form. California’s agency disclosure rules require written disclosure of agency relationships and informed written consent from both parties. California Civil Code sections 2079.13 to 2079.24 are clear on this.
They can tell me they signed something but not what it means. California law requires disclosure and informed written consent from both parties, but the law cannot force comprehension. It can only require the paper.
That gap between what the form says and what the client understands is where the trouble lives. And it is why double popping does not sit right with me. The paperwork is clean. The responsibility is not.
The change in responsibility
A dual agent may not favor one client over the other. When the buyer and seller are in alignment on price and terms is when double popping works. When that alignment isn’t there is when things can get a little complicated.
Agents relay information from clients to our colleagues. We provide analysis and strategy to our clients and then respond to our colleagues. When we represent both sides of a transaction, we have lost the ability to analyze and recommend courses of action for our clients.
We may know our seller will accept less or our buyer will pay more, but we cannot put the deal together without potentially violating professional and personal codes of ethics. And that brings us to the money part.
The payoff
The first time I closed a deal I double-ended, my sales manager left a yellow Post-it on my check with a backhanded compliment. Then I saw the commission check and suddenly understood why people had such strong feelings about the process. Twice the money for almost the same amount of work.
The rationalization started immediately. One deal instead of two to make the same money. Fewer agents to coordinate. Less chance of a cooperating broker dropping the ball. The logic is seductive. “Of course, I could do it better than another agent.”
The danger is that it becomes the default instead of the exception. The first double pop might be triage. The fifth one is a choice. At some point, you stop asking whether it is necessary and start thinking it is better for your client. It becomes a habit before you notice it happening. And that is exactly the kind of behavior the National Association of Realtors’ settlement was supposed to address.
Double dipping after the NAR settlement
The settlement was supposed to make commissions more transparent and give buyers more choice. Instead, buyers now face signing a buyer broker agreement spelling out exactly how much they will pay their agent before ever seeing a property.
Those of us who have ever represented a first-time homebuyer know they are notoriously skittish, and most are intimidated by the process. The added “making it real” of the BRBC may be a factor in the “why” they’re using the listing agent to represent them in a transaction. And this is where the double pop lives.
The New York State Association of Realtors January 2025 legal update flagged the “likely increase of disciplinary complaints against licensees” as a consequence of dual agency.
So if you’re going to do it …
How to double pop
I’m getting on my “dad” hat here because if you’re going to do it, at least be safe about it — go ask your mother (broker or attorney). Here’s my best practices suggestion as a real estate broker; I am not an attorney and should not be relied on for legal advice. You make up your own mind about whether my advice is helpful.
- Start by making a point to really explain the agency disclosure to the best of your ability. This is the most important form you have; that’s why it is the first one in a listing or purchase agreement package.
- If you can’t understand the AD, take the time to research it or, at the very least, run it through an AI and ask it to summarize the document. Do not gloss over the form.
- When the unrepresented buyer calls, your first job is disclosure. Tell them directly that you represent the seller. Explain what dual agency means in plain language.
- Know when to say no to dual agency. If the buyer and seller are far apart on price, the property needs negotiation on repairs or contingencies, recommend another agent handle the deal. The commission you keep is not worth the risk to your reputation or your license.
America Foy is a broker associate at The Grubb Co. Get connected on LinkedIn and Instagram.
