2.1 Delaware Agency Relationships

Statutory Agency Is the Delaware Default

Unlike most license-law states that keep traditional fiduciary agency, Delaware abrogated the common law of agency for licensees. Under 24 Del. C. § 2932 the common law applies only to the extent it does not conflict with the statute, and § 2933 declares that every licensee is presumed to be a statutory agent unless the brokerage agreement expressly identifies the licensee as a common law agent. A licensee may call themselves "agent" or "statutory agent."

This is the single most common trap on the state exam: answer choices that describe a Delaware licensee as a full common law fiduciary by default are wrong. The default is statutory agency.

Statutory Agent vs. Common Law Agent

Exam Tip: A licensee cannot serve as a common law agent on a 1-to-4 family residential property unless that relationship is in writing and the broker's policy is to act only as a single agent, never a dual agent.

Duties of a Delaware Statutory Agent

24 Del. C. § 2936(b) lists the duties a statutory agent owes its client. Memorize these specific items rather than the generic national fiduciary mnemonic:

• Reasonable skill and care in performing services
• Account for all money and property received in a timely manner
• Disclose adverse material facts about the property actually known to the licensee
• Assist the parties in complying with the terms of the contract
• Perform ministerial acts (showing property, preparing forms, conveying offers)

Under § 2936(c) a statutory agent must keep confidential, without the affected party's informed consent: a buyer's willingness to pay more than the offered price, a seller's willingness to accept less than the listed price, the parties' motivating factors, and any agreed alternative terms.

Duties Owed to Customers (Non-Clients)

Even a party the licensee does not represent is owed honesty and disclosure of adverse material facts the licensee actually knows. A licensee may not knowingly make a false statement.

The Consumer Information Statement (CIS)

Delaware's required disclosure is the Consumer Information Statement, not a generic "agency disclosure form." Under § 2938(b) the licensee must deliver the CIS no later than the earlier of: the first scheduled appointment, the first showing of a property, or the making of an offer. It must be signed before any brokerage agreement is executed unless an exemption applies.

Worked example: A buyer phones about a listing and schedules a Saturday showing. The licensee must hand over the CIS at or before that Saturday appointment — the earlier of the trigger events — not after writing an offer.

Compensation Does Not Create Agency

Who pays the commission never determines representation. If the seller pays a cooperating buyer's-side licensee, the licensee is still the buyer's statutory agent. The brokerage agreement, not the source of money, controls.

Common Tested Distinctions and Scenarios

The Delaware portion tests whether you can apply the statutory framework to fact patterns. Walk through the most common ones.

Scenario: Caller at an Open House

A visitor at an open house begins asking about the seller's flexibility on price. At that point the licensee is having substantive contact with someone the licensee does not represent. The licensee must deliver the Consumer Information Statement and may not reveal the seller's confidential bargaining position. The visitor is a customer, owed honesty and disclosure of known adverse material facts, not the full statutory-agent confidentiality protections.

Scenario: Licensee Wants to Be a True Fiduciary

A salesperson promises a buyer "full fiduciary loyalty like in other states." To deliver that, the brokerage agreement must expressly elect common law agency under § 2932, and the broker's policy must be single-agent only — never dual. Absent that written election, the licensee is a statutory agent by default.

Statutory Agent vs. Customer — Quick Reference

• Client (represented): reasonable skill and care, accounting, disclosure of known adverse material facts, confidentiality of price and motivation, assistance with the contract.
• Customer (not represented): honesty, no false statements, disclosure of known adverse material facts, fair treatment, and a CIS.

Why Delaware Chose Statutory Agency

The statutory model gives consumers predictable, written disclosure (the CIS) and limits the open-ended liability that traditional common law fiduciary duty created for brokers. It also makes dual agency workable as a disclosed, consented arrangement rather than an automatic conflict of fiduciary loyalties. Expect at least one question that rewards recognizing that the default is statutory, the CIS is the disclosure vehicle, and common law agency is the exception you must elect in writing. Memorize the three CIS timing triggers — first appointment, first showing, first offer — and that the deadline is the earlier of them.