What must the dual agent do?
- AKeep it from the buyer, because the seller is also a client
- BTell the buyer only if the buyer asks about the air conditioning
- CDisclose it to the buyer, because a dual agent discloses all actually known adverse material facts
- DResign as dual agent before saying anything
Pick an answer before you read on.
Answer: C
Disclose it to the buyer, because a dual agent discloses all actually known adverse material facts. A dual agency consent must state that the dual agent will disclose all adverse material facts it actually knows to all parties, except confidential information from the other client that BRRETA does not allow or require to be disclosed. A hidden mechanical failure is also an adverse physical fact the seller's side must disclose under § 10-6A-5. Section 10-6A-12 says no cause of action arises from making disclosures the chapter allows or requires, and making them does not end the agency.
Why each choice is right or wrong
A. Keep it from the buyer, because the seller is also a client
The seller's client status does not shield a defect the law requires the broker to disclose. Confidentiality has statutory limits.
B. Tell the buyer only if the buyer asks about the air conditioning
This is an affirmative disclosure duty. The buyer does not have to ask the right question about a failure that was hidden during the spring tour.
C. Disclose it to the buyer, because a dual agent discloses all actually known adverse material factsCorrect answer
The broker actually knows about a recurring mechanical failure. It is an adverse material fact, and the seller-side disclosure duty also covers the hidden physical defect.
D. Resign as dual agent before saying anything
Section 10-6A-12 says an allowed or required disclosure does not terminate the agency. Resigning is not a prerequisite to telling the buyer.
The trap
Confidentiality protects negotiating information, not hidden defects. A seller cannot make a defect confidential.
The Rule
A dual agent discloses actually known adverse material facts, except client information protected under BRRETA.
What would change the answer
- If the seller instead says they would accept $10,000 less, and asks that it stay private, the dual agent should not pass that confidential negotiating information to the buyer.
- If the failure would be obvious on a reasonably diligent inspection, the seller-side duty in § 10-6A-5 does not reach it, though the dual agent's promise to disclose known adverse facts still applies.
Where the rule comes from
- O.C.G.A. § 10-6A-12, Broker acting as dual agent. A broker may act as a dual agent only with written consent from all clients that contains the disclosures specified by the statute.
- O.C.G.A. § 10-6A-5, Duties and responsibilities of broker engaged by seller. A seller's broker must perform the engagement, promote the seller's interests (including timely presenting all offers to and from the seller even when the property is under contract, though it need not seek more offers then unless the engagement says so), exercise reasonable skill and care, obey the law, keep requested confidences, and disclose to all parties actually known adverse material facts about the property's physical condition and conditions within one mile that a diligent inspection would not reveal.
This is an original teaching question written from the statute. It is not a PSI exam item, and it is not copied or reconstructed from one. On the exam, BRRETA sits inside the Georgia agency and listing content. The BRRETA guide covers the client and customer table and the dual and designated agency rules in one place.