Dual Representation & Conflict of Interest (RES)

The rule is regulation 5 — and it is a criminal offence

Candidates lose marks here by filing dual representation under "the Code of Ethics". It is not in the Code at all. It sits in regulation 5 of the Estate Agents (Estate Agency Work) Regulations 2010, headed "No dual representation", drafted in three tight limbs worth knowing precisely:

• Reg 5(1) — the prohibition. No salesperson or estate agent who is a natural person shall, in respect of the same property, have as clients both vendor and purchaser or both landlord and tenant. Note the two words the exam leans on: the test is the same property, and it turns on who your clients are.
• Reg 5(2) — consent is irrelevant. The prohibition applies regardless of the consent or agreement of the client or of any or all the parties to the relevant transaction. That is the statutory answer to "but I disclosed it and both sides agreed" — the legislation forecloses it in terms, which is why disclosure can never cure it.
• Reg 5(3) — it is an offence. On conviction: a fine of up to $25,000, imprisonment of up to 12 months, or both — the same ceiling as the regulation 6 moneylender ban, and heavier than the regulation 7 transaction-money offence ($10,000 / 6 months). CEA has prosecuted salespersons for it in court.

Why the ban is absolute is easy to see: the seller wants the highest price and the buyer the lowest, so genuine loyalty to both is impossible. Taking a fee from both sides is the clearest evidence you had both as clients — but the offence is complete once both are your clients, whoever ends up paying you.

Prohibited vs allowed — don't confuse these

So co-broking is not dual representation — it's the normal way two sides are each represented. The line is crossed when the same salesperson tries to serve both sides on one property. Two refinements the exam likes: CEA looks at substance, not labels, so a salesperson who in substance or effect acts for — or is paid by — both parties breaches the ban even if a colleague is nominally put on the other side; and where the other side's salesperson is from your own agency but outside your team, that is a genuine co-broke but a declarable conflict, to be disclosed in writing in the estate agency agreement (or immediately in writing if it surfaces later). A related salesperson is a different case: the same-team rule below usually bars him from the buyer's side altogether.

Why an intra-agency co-broke is lawful at all — the answer is in reg 5(1)'s own words. The prohibition binds a salesperson and an *estate agent who is a natural person*. A licensed estate agency that is a company or partnership is therefore not itself caught by reg 5(1), which is precisely why two different salespersons of the same agency may each act for one side, provided they are not in the same team* (next section). What that does not do is switch off the conflict rules: the connection must still be declared in writing* under paragraph 13 of the Code, below.

And if the other party is unrepresented, you still act for your client alone — but you must make sure that party understands you do not represent them and are not looking after their interests. Being helpful to them is fine; letting them believe you are their agent is not.