AGENCY- The Real Estate Description.
The concept of "agency" is so basic to legal transactions in Uganda and most of the world that it is often taken for granted. In its simplest form,it's simply appointing another to act on your behalf for a sepecified purpose. It is inherent in every employment relationship, mostly sales relationship, organisations and business structures.
It is also far more complex than one would expect, as discussed in this article. How is an agency created? What happens when an agent exceeds authority? What happens when an agent to the person appointing him or her and vice versa? Is the principal liable for the acts of the agent even if unauthorised or illegal? Can one create an Agency by conduct even if one does not mean to? And how does an agency last?
It is important to understand how broad agency can be. If one hires a contractor to rebuild the kitchen, he or she will hire numerous subcontractors (plumbers, electricians, etcs) who will buy materials from (suplliers) and the law will hold that you have become the principal for all these agents and subagents; the suppliers are allowed to sue you directly for the materials if purchased by the subcontractors
Business strucutures
Any limited liability entity must have agents to act for it. That is true of corporations, limited liability companies and limited liabilty partnerships. Usually those agents are managers, directors, officers and employees. All have a fiduciary duty to the entity, can bind the entity, and are subject to the corporate opportunity doctrine
In reality, the above are only a small sampling of the myriad agency relationships that can be created. Almost all of us are both principals and agents in a dozen or more relationships all the time-if you work or are an independent contractor, you are an agent. If you are an officer of your church or community group, you are an agent.
DEFINITIONS AND BASICS:
Agency is a fiduciary relationship whereby one party expressly or impliedly authorises another to act under his or her control and on his or her behalf. The party for whom another acts and from whom such authority derives is a "principal". The one who acts for and represents the principal and acquires his or her authority the "agent" is the representative of the principal and acts for and instead of the principal.
A real estate agency is a business that arranges the selling, renting, or management of homes, land, condominiums, commercial properties and other similar investments of their own or on behalf of the esteemed clients.
The majority of all licensed agents are special agents. Special agency is one of the most common real estates agency types.
The most common agency relationships are;
* Buyer's Agency.
* Seller's Agency.
* Dual Agency.
In a buyer's agency relationship, the buyer is considered the client. A buyer's agent has to be loyal, maintain confidentiality, be obedient, provide reasonable care and diligence, and give accounting for all funds.
Similarly, a seller's agency relationship reprensents the seller in the transaction and the seller is considered the client. A seller's agent is also known as a listing agent. The seller's agent possesses the same fiduciary reponsibilities to the seller as the buyer's agent has to the buyer. In a seller's agency, the client relationship is established through a listing agreement.
In a dual agency, an agent represents both buyer and seller in a single transaction and carries fiduciary reponsibilities to both principals. The mistake of an agent acting as a dual agent becomes a mutual mistake of fact by both principals.This prevents one principal to make the other principal liable for the mistake of the agent.
UNDISCLOSED AGENCY
If a third party or person has no information about the fact that the agent is acting for a principal, then both the agency and the principal is "undisclosed." The agent of an undisclosed principal can be held liable on the contract as the real obligor as s/he contracted in that capacity. Similarly, an undisclosed principal can be held liable as she or he must also assume its burdens.
The liability of an undisclosed principal and the agent is normally an alternative liability. It means that the third party can only makeeither the principal or the agent responsible only after discovery of the principal and opportunity to make an intelligent choice. However, once an election is made by a third party, it is generally irrevocable.
If an agent acts in his or her own name without disclosing the principal this will not preclude liability of the principal. Note that if there is no proof of an actual agency relationship, there can be no reliance on the doctrine of undisclosed principals. Also, the principal is not liable where the contract provides that an undisclosed principal is not a party to it. Likewise, in order to avoid personal liability of the agent, disclosure of the principal must normally be made at the time of contract. After the principal is disclosed,the agent will not be liable for subsequent authorised acts between the third person and the principal.
When an agent makes a contract for the principal concealing the fact that s/he is an agent, the principal can claim all the benefits of the contract from the other contractingt party, so far as the principaldoes not cause any injury to the other party. However, a third person will not be liable to an undisclosed principal, if the specific terms of the contract exclude liability to any undisclosed principal or to the particular principal. There is nothing "illegal" or "unethical" about an undisclosed agency and the agreement does not prohibit it.
Undisclosed agents are often used to avoid negotiations that would otherwise be biased or tainted.Thus, if i am selling a building to a very rich buyer i may negotiate a much higher price.
SUBAGENTS
A subagent is a person to whom the agent delegates authority as his/her agent. Through a subagent, the agent can perform an act for the principal. If an agent feels that the appointment of subagents are neccessary to the proper transaction and carrying on of the business committed to the agent, then the agent has an implied authority to make such appointments absent contrary provisions in the agreement. Generally, then the agent is the employing person and the principal is not a party to the contract of employment.
If an agent employs a subagent for his/her principal, and by his/her authority, then the subagent is the agent of the principal and is directly responsible for his/her conduct,and if damage results from the conduct of such subagent, the agent is only responsible in case s/he has not exercised due care in the selection of the subagent.
But if the agent employs a subagent on his or her own account to assist him or her in the work at his or her own risk, then there is no agreement between such subagent and the principal. Under this circumstance, a subagent is only responsible to the agent ,while the agent is responsible to the principal for the actions done by him/her and the actions by the subagent.
An agent is responsible to the principal for the conduct of a subagent with reference to the affairs of the principal entrusted to the subagent. However, a subagency cannot give more power to the subagency than the agency has and when that general agency ceases to exist, it will automatically dissolve the subagency.
An agent is not liable to third persons for the misfeasance or malfeasance of a subagent employed by him/her in the service of his/her principal, unless s/he is guilty of negligence in the appointment of such subagent or improperly cooperates in the acts or omissions of the subagent. Baisley v. Henry, 55 cal. App. 760 (cal.App. 1921).
THIRD PARTIES AND AGENCY
If an agent acts within the scope of her/his autgority , a principal is bound by the act of her/ his agent. Moreover, a principal is responsible for any action or inaction by the principal's agent. The liability of the principal to a third person upon a transaction conducted by an agent is based upon facts such as:
* the agent was authorised;
* the agent was apparently authorised;or
* the agent had a power arising from the agency relation and not dependent upon authority or apparent authority.
A principal may be liable to a third person on account of transaction with an agent beause of the principles of estoppel, restitution, or reasonable reliance, although he/she may not be subject to liability based on principles of agency. Unless a person has expressly or impliedly made such other his/her reprentative, no person is liablefor the acts of anothert who assumes to represent him/her. Moreover, a person dealing with an agent cannot hold the principal liable for any act or transaction of the agent not within the scope of his/her actual or apparent authority.
Hoever, unless the limitations of the agency are known or can be readily ascertained, the principal may be bound by the unauthorised acts of an agent through which a third party has sustained a loss if reasonable reliance on the agent's authority is demonstrated.
The principal will no longer be liable for a partcular act after the third person has notice of the principal's repudiation of the agent's authority to do such an act. After the termination of an agency for a particular purpose and notice of the revocation of the agency, the act of an agency will normally not bind by the principal. Often , a principal is normally liable for the tortuous acts of an agent within the course and scope of the agent's employment. However, it must be emphasised that unless the principal commands or directs the act, a principal is not liable for the torts committed by an agent while acting adversely to the principal or outside the scope of the agent's employment.The principal is bound by the knowledge of or notice to an agent received while the agent is acting within the scope of his/her authoruty. The agent's knowledge or notice is imputed to the principal and is constructive notice.
Real estate agency help or assist clients in buying , selling , and renting properties.They advise clients about market conditions, conduct walkthroughs, and provide guidance and assistance through the process of buying,selling, or leasing properties.
Real estate agency or real estates agents or sales personels does similar work to a real estate broker but brokers are licensed to manage their own real estate businesses. Real estate agents must work with real estate brokers.
CONCLUSION:
This is amere introduction to the extensive jurisprudence concerning agency and even the cursory review above demonstrates that the reason there is so much law on the subject is the pervasiveness of an agency in both the business and personal world in all aspects of life, from commercial to family decisions. Every employee, every realtor, every contractor, and everyone asks to perform a task is an agent and given the inevitable problems that relationships entail, litigation concerning agency is endemic.
Like most things one comfronts day to day, it becomes so common that one fails to notice its complexity. But for antone engaged in any business, agency is as central a part of their business legal life as contracts or employment law and a good working knowledge of its requirements is necessary.
Sparta properties limited is a real estate agency located within the heart of kampala along katwe road on Byandala Nankya complex strategically to serve kampala metropolitan area and the rest of country with advisory information and luxury residentials and commercial properties.