“An educated consumer is our best customer.” Sy Syms
REALTORS have worked for decades to help educate the public about the relationships between buyers; sellers and their agents. Nothing is more important to the REALTORS at R. H. Thackston & Company that making sure our customers are an educated consumer.
To help buyers and sellers understand what’s going on we have reproduced the Consumer Disclosures from the New Hampshire, Vermont and Massachusetts Real Estate Commissions below.
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NEW HAMPHIRE
NH CONSUMER INFORMATION BROCHURE
NEW HAMPSHIRE CONSUMER INFORMATION: Relationships in Real Estate
Are You a Customer or Client?
When you choose to work with a real estate licensee he or she may or may not be "your" agent. An agent owes certain duties to a client, but has a different obligation to a customer. It is important to know whether you are a customer or a client in a real estate transaction. You should discuss the following information with the real estate licensee with whom you may work in order to make informed decisions.
Who is a Customer? A customer is one who seeks to sell, exchange, purchase, rent or lease real estate, but has not hired the real estate licensee to represent them. As a customer, you cannot expect the licensee to act as your agent or to advocate on your behalf. A real estate licensee can, however, provide valuable market information and services to assist you as a customer. A licensee is also obligated by law to treat customers honestly, to disclose material defects actually known by the licensee pertaining to the on-site physical condition of the real estate, and to promptly present all offers and counteroffers. A licensee working “with” a customer may perform ministerial administrative acts, which include showing property, preparing and presenting offers or agreements, and providing information and assistance concerning the transaction.
Who is a Client? A client is a person who establishes an agency relationship with a licensee through a written contract and agrees to be represented by the agent in a real estate transaction. This contract must clearly establish the terms and obligations of both the client and the licensee/firm who becomes the agent. As a client, in addition to the customer-level services listed above, you can expect the following client-level services: • Advocacy • Care, Skill and Diligence • Advice • Confidentiality • Loyalty • Lawful Obedience • Promotion of client’s best interest
Who is an Agent? An agent is a licensee with a fiduciary obligation to provide services through a written contract for a seller, landlord, buyer, or tenant and is bound by the duties of loyalty, lawful obedience, disclosure, confidentiality, reasonable care, diligence, and accounting. The written agency contract is with the firm and not with the individual agent. The seller/landlord and/or the buyer/tenant may be liable for the actions of the agent and any sub-agents when these actions occur within the scope of the agency relationship.
What Types of Agency Relationships are commonly practiced in New Hampshire?
SELLER AGENCY A seller agent is a licensee who acts on behalf of a seller or landlord in the sale, exchange, rental, or lease of real estate. The seller is the licensee’s client and the licensee has the duty to represent the seller’s best interests in the real estate transaction.
BUYER AGENCY A buyer agent is a licensee who acts on behalf of a buyer or tenant in the purchase, exchange, rental, or lease of real estate. The buyer is the licensee’s client and the licensee has the duty to represent the buyer’s best interests in the real estate transaction.
SINGLE AGENCY Single agency is a practice where the firm represents only one client in the transaction (the buyer or the seller).
SUB- AGENCY A sub-agent is a licensee who works for one firm, but is engaged by the principal broker of another firm to perform agency functions on behalf of the principal broker’s client. A sub-agent does not have an agency relationship with the customer.
DISCLOSED DUAL AGENCY A disclosed dual agent is a licensee acting for both the seller/landlord and the buyer/tenant in the same transaction with the knowledge and written consent of all parties. The licensee cannot advocate on behalf of one client over another. Because the full range of duties cannot be delivered to both parties, written informed consent must be given by all clients in the transaction. A Dual Agent may not reveal confidential information without consent, such as: 1. Willingness of the seller to accept less than the asking price. 2. Willingness of the buyer to pay more than what has been offered. 3. Confidential negotiating strategy not disclosed in the sales contract as terms of the sale. 4. Motivation of the seller for selling nor the motivation of the buyer for buying.
DESIGNATED AGENCY A designated agent is a licensee who represents one party of a real estate transaction and who owes that party client level duties, whether or not the other party to the same transaction is represented by another individual licensee associated with the same brokerage firm.
FACILITATOR A facilitator is an individual licensee who assists one or more parties during all or a portion of a real estate transaction without being an agent or advocate for the interests of any party to such transaction. This relationship may change to an agency relationship by entering into a written contract for representation, prior to the preparation of an offer. If another relationship between the licensee who performs the services and the seller, landlord, buyer, or tenant is intended, it must be described in writing and signed by all parties to the relationship prior to services being rendered.
The material presented in this brochure is intended to assist consumers in making wise decisions regarding a real estate transaction in New Hampshire. Anything in this pamphlet should not be considered legal advice.
Additional information can be obtained regarding the laws, rules and regulations on Real Estate Agency Relationships at //www.nh.gov/nhrec/adrules.html or by contacting the NH Real Estate Commission at the contact information below.
NH Real Estate Commission, 64 South Street, Concord, NH 03301 Tel: (603) 271-2701 Fax: (603) 271-1039 E-mail: Website: www.nh.gov/nhrec
NH BROKERAGE RELATIONSHIP DISCLOSURE FORM
NEW HAMPSHIRE REAL ESTATE COMMISSION 64 South Street, Concord, NH 03301 Tel.: (603) 271-2701
BROKERAGE RELATIONSHIP DISCLOSURE FORM (This is Not a Contract)
This form shall be presented to the consumer at the time of first business meeting, prior to any discussion of confidential information
RIGHT NOW YOU ARE A CUSTOMER As a customer, the licensee with whom you are working is not obligated to keep confidential the information that you might share with him or her. As a n customer, you should not reveal any confidential information that could harm your bargaining position. As a customer, you can expect a real estate licensee to provide the following customer-level services: · To disclose all material defects actually known by the licensee pertaining to the on-site physical condition of the real estate; · To treat both the buyer/tenant and seller/landlord honestly; · To provide reasonable care and skill; · To account for all monies received from or on behalf of the buyer/tenant or seller/landlord relating to the transaction; · To comply with all state and federal laws relating to real estate brokerage activity; and · To perform ministerial acts, such as showing property, preparing and conveying offers, and providing information and administrative assistance.
TO BECOME A CLIENT Clients receive more services than customers. You become a client by entering into a written contract for representation as a seller/landlord or as a buyer/tenant. As a client, in addition to the customer-level services, you can expect the following client-level services: · Confidentiality; · Loyalty; · Disclosure; · Lawful Obedience; and · Promotion of the client’s best interest. For seller/landlord clients this means the agent will put the seller/landlord’s interests first and work on behalf of the seller/landlord. For buyer/tenant clients this means the agent will put the buyer/tenant’s interest first and work on behalf of the buyer/tenant. Client-level services also include advice, counsel and assistance in negotiations.
For important information about your choices in real estate relationships, please see page 2 of this disclosure form.
I acknowledge receipt of this disclosure as required by the New Hampshire Real Estate Commission (Pursuant to Rea 701.01). I understand as a customer I should not disclose confidential information. ________________________________________________________ ________________________________________________________ Name of Consumer (Please Print) Name of Consumer (Please Print) ________________________________________________________ _________________________________________________________ Signature of Consumer Date Signature of Consumer Date Provided by: _____________________________________________ ________________________________________________________ Licensee Date (Name of Real Estate Brokerage Firm) __________________ Consumer has declined to sign this form. (Licensees Initials)
To check on the license status of a real estate firm or licensee go to www.nh.gov/nhrec. Inactive licensees may not practice real estate brokerage. (Page 1 of 2)
PAGE 2
Types of Brokerage Relationships commonly practiced in New Hampshire
SELLER AGENCY (RSA 331-A:25-b) A seller agent is a licensee who acts on behalf of a seller or landlord in the sale, exchange, rental, or lease of real estate. The seller is the licensee’s client and the licensee has the duty to represent the seller’s best interest in the real estate transaction.
BUYER AGENCY (RSA 331-A:25-c) A buyer agent is a licensee who acts on behalf of a buyer or tenant in the purchase, exchange, rental, or lease of real estate. The buyer is the licensee’s client and the licensee has the duty to represent the buyer’s best interests in the real estate transaction.
SINGLE AGENCY (RSA 331-A:25-b; RSA 331-A:25-c) Single agency is a practice where a firm represents the buyer only, or the seller only, but never both in the same transaction. Disclosed dual agency cannot occur.
SUB-AGENCY (RSA 331-A:2, XIII) A sub-agent is a licensee who works for one firm, but is engaged by the principal broker of another firm to perform agency functions on behalf of the principal broker’s client. A sub-agent does not have an agency relationship with the customer.
DISCLOSED DUAL AGENCY (RSA 331-A:25-d) A disclosed dual agent is a licensee acting for both the seller/landlord and the buyer/tenant in the same transaction with the knowledge and written consent of all parties. The licensee cannot advocate on behalf of one client over another. Because the full range of duties cannot be delivered to both parties, written informed consent must be given by all clients in the transaction. A dual agent may not reveal confidential information without written consent, such as: 1. Willingness of the seller to accept less than the asking price. 2. Willingness of the buyer to pay more than what has been offered. 3. Confidential negotiating strategy not disclosed in the sales contract as terms of the sale. 4. Motivation of the seller for selling nor the motivation of the buyer for buying.
DESIGNATED AGENCY (RSA 331-A:25-e) A designated agent is a licensee who represents one party of a real estate transaction and who owes that party client-level services, whether or not the other party to the same transaction is represented by another individual licensee associated with the same brokerage firm.
FACILITATOR (RSA 331-A:25-f) A facilitator is an individual licensee who assists one or more parties during all or a portion of a real estate transaction without being an agent or advocate for the interests of any party to such transaction. A facilitator can perform ministerial acts, such as showing property, preparing and conveying offers, and providing information and administrative assistance, and other customer-level services listed on page 1 of this form. This relationship may change to an agency relationship by entering into a written contract for representation, prior to the preparation of an offer.
ANOTHER RELATIONSHIP (RSA 331-A:25-a) If another relationship between the licensee who performs the services and the seller, landlord, buyer or tenant is intended, it must be described in writing and signed by all parties to the relationship prior to services being rendered.
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VERMONT
Vermont Real Estate Commission Mandatory Consumer Disclosure (This is not a Contract)
This mandatory disclosure shall be given to the consumer at the first reasonable opportunity, and must be given to the consumer before discussion of confidential information; entering into a service agreement; or showing a property.
Right Now You Are A Customer As a customer, the real estate agent with whom you are working is not obligated to keep confidential the information that you might share with him or her. As a customer, you should not reveal any confidential information that could harm your bargaining position. Vermont law requires all agents to perform basic duties when dealing with a buyer or seller. You can expect the agent with whom you deal to provide the following services whether you are a Customer or a Client: • To disclose all material facts pertaining to the property known to the agent. • To treat both the buyer and seller honestly and not knowingly give false or misleading information. • To account for all money and property received from or on behalf of the buyer or seller. • To comply with all state and federal laws related to the practice of real estate.
I/We Acknowledge Receipt of This Disclosure _________________________________________ Printed Name of Consumer _________________________________________ Signature of Consumer Date [ ] Declined to sign _________________________________________ Printed Name of Consumer _________________________________________ Signature of Consumer Date [ ] Declined to sign
You May Become A Client Whether you are selling or buying, clients receive more services than customers. You become a client by entering into a written contract with a real estate brokerage firm. All agents in the firm work for you. In addition to the services noted in the left hand column, as a client you can expect the following services: • Confidentiality, including bargaining information • Promotion of your best interest within the limits of the law • Advice and counsel • Assistance in negotiations
Important Information
1. You are not required to hire a brokerage firm for the purchase or sale of Vermont real estate. You may represent yourself.
2. Before you hire a brokerage firm, ask for an explanation of the firm’s conflict of interest policies.
This form has been presented to you by: _________________________________________ Printed Name of Real Estate Brokerage Firm _________________________________________ Printed Name of Agent Signing Below _________________________________________ Agent of the Firm Signature Date
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MASSACHUSSETTS
MASSACHUSETTS MANDATORY LICENSEE-CONSUMER RELATIONSHIP DISCLOSURE
This disclosure is provided to you, the consumer, by the real estate agent listed on this form. Make sure you read both sides of this form. The reverse side contains a more detailed description of the different types of relationships available to you. This is not a contract.
THE TIME WHEN THE LICENSEE MUST PROVIDE THIS NOTICE TO THE CONSUMER: All real estate licensees must present this form to you at the first personal meeting with you to discuss a specific property. The licensee can represent you as the seller (Seller's Agent) or represent you as the buyer (Buyer's Agent) and also can assist you as a facilitator.
CONSUMER INFORMATION AND RESPONSIBILITY: Whether you are the buyer or seller you can choose to have the advice, assistance and representation of your own agent who works for you. Do not assume that a real estate agent works solely for you unless you have an agreement for that relationship. With your consent, licensees from the same firm may represent a buyer and seller in the same transaction. These agents are referred to as dual agents. Also a buyer and seller may be represented by agents in the same real estate firm as designated agents. The "designated seller or buyer agent" is your sole representative. However where both the seller and buyer provide written consent to have a designated agent represent them then the agent making such designation becomes a "dual agent" for the buyer and seller. All real estate agents must, by law, present properties honestly and accurately. They must also disclose known material defects in the real estate. The duties of a real estate agent do not relieve the consumers of the responsibility to protect their own interests. If you need advice for legal, tax, insurance or land survey matters it is your responsibility to consult a professional in those areas. Real Estate agents do not have a duty to perform home, lead paint or insect inspections nor do they perform septic system, wetlands or environmental evaluations.
RELATIONSHIP OF REAL ESTATE LICENSEE WITH THE CONSUMER (check one) ___Seller's agent ___Buyer's agent ___Facilitator
IF A SELLER'S OR BUYER'S AGENT IS CHECKED ABOVE COMPLETE THE SECTION BELOW: Relationship with others affiliated with ___________________________________________________ (Print name of real estate firm or business and license number) (Check one) ____The real estate agent listed below, the real estate firm or business listed above and all other affiliated agents have the same relationship with the consumer named herein (seller or buyer agency, not designated agency). ____Only the real estate agent listed below represents the consumer named in this form (designated seller or buyer agency). In this situation any firm or business listed above and other agents affiliated with the firm or business do not represent you and may represent another party in your real estate transaction.
By signing below I, the real estate licensee, acknowledge that this disclosure has been provided timely to the consumer named herein. _________________________ ____________________________ _____________ ____________ (signature of real estate agent) (Printed name of real estate agent) (License Number/Type) (Today's Date)
By signing below I, the consumer, acknowledge that I have received and read the information in this disclosure. _______________________ ________________________ _____________ (Signature of consumer) (Printed name of consumer) (Today's Date) _______________________ ________________________ _____________ (Signature of consumer) (Printed name of consumer) (Today's Date) ___Check here if the consumer declines to sign this notice.
TYPES OF AGENCY REPRESENTATION
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, 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 seller's interests 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 AGENT 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 interests 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 of 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 interests. The written consent for designated agency must contain the information provided for in the regulations of the Massachusetts Board of Registration of Real Estate Brokers and Salespeople (Board). A sample designated agency consent is available at the Board's website at www.mass.gov/dpl/re.
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 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 of 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 for dual agency must contain the information provided for in the regulations of the Massachusetts Board of Registration of Real Estate Brokers and Salespeople (Board). A sample dual agency consent is available at the Board's website at www.mass.gov/dpl/re. agency disclosure-exclusive