Creating Listing Side Relationships
Because the listing side agency relationship is created in a written contract, it is easy to determine when the agency relationship begins. It begins on the effective date of the listing contract. When marketing or MLS filing is to be delayed under the listing agreement, it is wise to add a clause that makes clear that all other terms of the listing are to be in force on the effective date of the listing. In this way, arguments can be avoided if a buyer emerges prior to the marketing or MLS filing date.
Notwithstanding the certainty created by using a written agreement on the listing side, there is one situation that can cause confusion of agency duties when listing property. That situation arises when the seller discloses confidential information to the agent during the listing presentation but, for whatever reason, does not then list the property. Although it would seem the agent has no duty to protect the confidences if the seller does not enter into a listing agreement, courts do not look at the situation that way. Instead, courts conclude that a limited agency relationship created by conduct existed for the purpose of the listing presentation. It follows that information exchanged during the presentation is confidential even if the seller does not continue the relationship by entering into a listing agreement.
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