Disclosures
Types of Agency
It is required by State Law that a Real Estate agent must disclose who they of representing by having a client or customer sign a Agency Disclosure Form on the first face to face meeting when discussing a specific property. An Agency Disclosure is not a contract. Buyers and Sellers have the option to refuse to sign the form, but the Agent will note that the client has refused to sign.
Seller’s Agent: A seller can engage the services of a real estate agent to sell his property (called the listing agent) and the real estate agent is then the agent for the seller who becomes the agent’s client. This means that the real estate agent represents the seller. The agent owes the seller undivided loyalty, reasonable care, disclosure knew material defects in the real estate. The agent must put the seller’s interest first and negotiate for the best price and terms for their client the seller. (The seller may authorize sub-agents to represent him/her in marketing its property to buyers. However, the seller should be aware that wrongful action by the real estate agent or sub-agents may subject the seller to legal liability for those wrongful actions).
Buyer’s Agent: A buyer can engage the services of a real estate agent to purchase property and the real estate agent is then the agent for the buyer who becomes the agent’s client. This means that the real estate agent represents the buyer. The agent owes the buyer undivided loyalty, reasonable care, disclosure, obedience to lawful instruction, confidentiality, and accountability, provided, however, that the agent must disclose known material defects in the real estate. The agent must put the buyer’s interests first and negotiate for the best price and terms for their client the buyer. (The buyer may also authorize sub-agents to represent him/her in purchasing property, however, the buyer should be aware that wrongful action by the real estate agent or sub-agents may subject the buyer to legal liability for those wrongful actions).
(Non-Agent) Facilitator: When a real estate agent works as a facilitator that agent assists the seller and buyer in reaching an agreement but does not represent either the seller or buyer in the transaction. The facilitator and the broker with whom the facilitator is affiliated owe the seller and buyer a duty to present each property honestly and accurately by disclosing known material defects about the property and owe a duty to account for funds. Unless otherwise agreed, the facilitator has no duty to keep information received from a seller or buyer confidential. The role of facilitator applies only to the seller and buyer in the particular property transaction involving the seller and buyer. Should the seller and buyer expressly agree a facilitator relationship can be changed to become an exclusive agency relationship with either the seller or the buyer.
Designated Seller’s and Buyer’s: A real estate agent can be designated by another real estate agent (the appointing or designating agent) to represent either the buyer or seller provided the buyer or seller expressly agrees to such designation. The real estate agent once so designated is then the agent for either the buyer or seller who becomes their client. The designated agent owes the buyer or seller undivided loyalty, reasonable care, disclosure obedience to lawful instruction, confidentiality, and accountability, provided, however, that the agent must disclose known material defects in the real estate. The agent must put their client’s interest first and negotiate for the best price and terms for their client. In situations where the appointing agent designates another agent to represent the seller and an agent to represent the buyer then the appointing agent becomes a dual agent. Consequently, a dual agent cannot satisfy fully the duties of loyalty, full disclosure, obedience to lawful instructions which is required for an exclusive seller or buyer agent. The dual agent does not represent either the buyer or the seller solely only your designated agent represents your interest. The written consent of designated agency must contain the information provided for in regulations of the Massachusetts Board of Registration of Real Estate Brokers and Salespeople (Board).
Dual Agent: A real estate agent may act as a dual agent representing both the seller and buyer in a transaction but only with the express and informed consent of both the seller and buyer. Written consent to the dual agency must be obtained by the real estate agent prior to the execution of an offer to purchase a specific property. A dual agent shall be neutral with regard to any conflicting interest of the seller and buyer. Consequently, a dual agent cannot satisfy fully the duties of loyalty, full disclosure, obedience to lawful instructions which is required for an exclusive seller or buyer agent. A dual agent does, however, still owe a duty of confidentiality of material information and accounting for funds. The written consent of dual agency must contain the information provided for in the regulations of the Massachusetts Board of Registration of Real Estate Brokers and Salespeople (Board).