Is your real estate ‘agent’ actually your agent? Why the answer is probably no and what to ask for if you want a real estate professional to act in your best interest.

October 5, 2025

By Nadia Cabrera-Mazzeo, Esq.

I had a client come to me days before closing on a home purchase. She felt that the communication between her and her agent had broken down and that she wasn’t being listened to. One of the first things I explained to her after reviewing all the documents, was that her “agent” was not her agent, he was a transaction broker.

People are generally familiar with real estate agents. They are licensed real estate brokers that have a legal duty to act in their client’s best interest. But these days, real estate brokers usually wear a different hat: that of the “transaction broker.” By law, transaction brokers do not have an agency relationship with their clients and therefore, no legal duty to act in the client’s best interest. This is not to say, by any means, that transaction brokers act against their clients’ best interest, only that they are not legally required to do so and clients should fully understand that.

What is a transaction broker?

New Mexico law defines a transaction broker essentially as a broker that “provides real estate services without entering into an agency relationship.” That’s a pretty broad definition and it can take many forms. Some real estate deals have one transaction broker that doesn’t represent either buyer or seller and facilitates the transaction equally with respect to the parties involved. But most deals in NM have a transaction broker on the buyer and seller sides. They talk to each other on behalf of their clients as they make sure all the deadlines are met and the transaction proceeds smoothly.

Traditional real estate agents have a special duty to clients that transaction brokers don’t

A real estate agent is a broker that has a written agreement with their client that establishes an agency relationship. The agency relationship is what makes real estate agents legally required to act in their client’s best interest, even when the client’s interest gets in the way of a purchase/ sale. Agents have a fiduciary duty to their clients which gives clients a cause of action to sue an agent if the agent breaches that legal duty to put the client’s interest over their own. There is an inherent conflict of interest when the broker’s commission hinges on the sale, and the fiduciary duty goes a long way to cure that conflict.

What can an agent do that a transaction broker can’t?

In addition to not having a legal duty to act in your best interest, transaction brokers are legally prohibited from telling you certain information that could impact the deal. For example, if you’re a buyer, the transaction broker is not allowed to tell you the seller’s motivations for selling, whether the seller indicated they’d accept a lower price, or if they’re open to financing terms other than the ones offered. If you’re a seller, the transaction broker is not allowed to tell you the buyer’s motivations or whether the buyer is willing to pay more than the initial offer.

When a broker acts as your agent, the above are not only allowed but typically required as part the fiduciary duty. Remember, if you don’t have a written contract that explicitly says they are your agent, then they are not your agent.

Almost all home sales in NM are facilitated by transaction brokers, not agents

Brokers in general are required to explain their role and duties to you. If you find yourself thinking, “my broker definitely did NOT explain this to me,” I’m sorry to say that they almost certainly did, in a contract that you signed without reading (it’s called the buyer-broker agreement). It’s a well-known fact, backed by data, that people generally don’t read contracts. I don’t blame you at all. Good brokers make it a point to explain their duties and clearly tell their clients that they are not agents, but most brokers forego that conversation.

If you want an agent that will have a legal duty to act in your best interest, you need to ask for it

If you want what’s called an “exclusive agency” relationship with the professional representing you in a transaction, you should explicitly ask for it and make sure you both sign a written agreement that creates that agency relationship. There is no agency relationship unless you both sign a contract explicitly stating that there is an agency relationship. It is up to the broker whether they will agree to take on that agent role.

Law office of Nadia Cabrera-Mazzeo, Esq.

Small business and contracts lawyer

Based in Taos, serving clients throughout New Mexico

505 427 2025

nadia@honestcontracts.com

The information on this website is not legal advice and does not create an attorney-client relationship. The rates and fees listed on this website may not be the most up to date.