IF
IT IS YOUR INTENTION TO LIST A SELLER'S PROPERTY AS A LISTING SALES ASSOCIATE
FOR YOUR REAL ESTATE COMPANY:
You will be representing the SELLER as a CLIENT of your Real Estate Company. The Company, your Broker and you will be the SELLER'S AGENT.
After telling the SELLER about your Company and yourself, the services you provide and how your Company and you will market the SELLER'S property, according to TCA 62-13-405, you must verbally disclose to the SELLER your status (how you will be working as the SELLER'S AGENT) in the transaction before any real estate services are provided.
"Mr. Seller I wish to represent you as a SELLER'S AGENT. As your AGENT there are two special duties I will owe only to you under Tennessee Law (TCA 62-13-404)”:
· OBEDIENCE – I will obey all of your lawful instructions within the scope of our agency agreement.
· LOYALTY – I will be loyal to your interests and place your interests above all others involved in any transactions or activities except where such loyalty duly to you would violate my required duties to a customer.
“Mr. Seller, as your Agent, I will owe to you and everyone involved with us in any transaction or activities involving your property the following duties under Tennessee Law (TCA 62-13-403)”:
· I will use professional skill and care in providing services.
· I must disclose to everyone any adverse facts, conditions or occurrences that have a negative impact on the value of your property, anything that reduces the structural integrity of your property and anything that presents a significant health risk to any one who would occupy your property.
· I will maintain the confidentially of all information you give me other than anything that I must disclose under the Law.
· I will provide services to you and to everyone with honesty and good faith.
· I will provide timely and accurate information by request on market conditions related to a transaction.
· My Company and I will account for any and all earnest money deposits and other property received from you or anyone else involved in a transaction.
· I will not engage in self-dealing. I will not have any conflicts of interest. I will not represent a family member or other entity in which I have an interest without prior disclosure to you. If I recommend to you the use of another business in which I have an interest or from whom I may receive a referral fee, I will give you proper disclosure.
"Mr. Seller, I am require by Law (TCA 62-13-405) to have you sign a DISCLOSURE FORM stating that I have given you all of this information before I can execute a Listing Contract with you. Please sign my Company's Disclosure Form."
[ NOTICE - THERE IS NO STANDARD OR OFFICIAL
FORM REQUIRED BY TENNESSEE LAW. THE LAW REQUIRES ONLY THAT YOU HAVE A WRITTEN
DISCLOSURE. USE WHATEVER FORM YOUR BROKER REQUIRES. USING A FORM WHICH LISTS THE REQUIRED DUTIES OWED TO THE CLIENT
AND ALL PARTIES WOULD GIVE THE AGENT ADDITIONAL PROTECTION IN COURT.]
With the AGENCY DISCLOSURE FORM and LISTING CONTRACT in hand, DO WHAT YOU HAVE TOLD YOUR CLIENT YOU WOULD DO!
INFORMATION YOU MUST DISCLOSE TO YOUR SELLER CLIENT AND ALL OTHER PARTIES
IN A TRANSACTION:
· Other Agency relationships ("I currently represent other SELLER CLIENTS, BUYER CLIENTS"; those real estate companies and agents you do not cooperate with.)
· Company Polices, Company Policy and Procedures for changing Agency Relationships. How you will handle IN-HOUSE Transactions (DESIGNATED AGENCY, DUAL AGENCY, defaulting to FACILITATOR/TRANSACTION BROKER).
· Sources of financing and Sources of compensation.
INFORMATION
YOU MUST DISCLOSE TO YOUR SELLER CLIENT:
· All information you can obtain about the Customer/Buyer.
· The identity of the Customer/Buyer.
· All offers to purchase.
· The willingness of the Customer/Buyer to complete the sale.
· The ability of the Customer/Buyer to offer a higher price.
· The Customer/Buyer's intentional use of the property.
· You cannot disclose any information that might weaken your CLIENT'S ability to obtain the most favorable terms in a transaction.
WORKING
WITH OTHER REAL ESTATE LICENSEES AS A SELLER'S AGENT:
Under Tennessee Law (TCA 62-13-405), upon initial contact with any other Licensee involved in a transaction with you, you must disclose your SELLER AGENT status. This is a VERBAL Disclosure.
The Law does not require it to be in writing. Other Licensees must verbally disclose to you their agency or non-agency status at initial contact. If, at anytime, any Licensee's status changes during involvement
in a transaction with you, that Licensee must immediately tell you of the change. Written Disclosure of this change is only required between the Licensee and the person with whom the Licensee is working ( the customer or buyer ). Under the Law, you are only responsible for disclosing YOUR OWN agency relationship in a transaction, not the status of any other Licensee in the transaction.
THERE IS NO REQUIREMENT NOR PROVISION
IN THE LAW FOR Licensees or Real Estate Companies to pass back and forth at the
time of negotiating an Offer to Purchase, a Disclosure Form to be signed by all
Licensees and parties involved.
While
some Licensees and Companies may DESIRE a written disclosure from everyone
involved in a transaction, this DESIRE is not a requirement and cannot impede
the negotiation or completion of a transaction.
THERE IS A REQUIREMENT IN THE
REALTORS® CODE OF ETHICS FOR “REALTORS®, acting as agents of, or in another
relationship with, buyers or tenants, shall disclose that relationship to the
seller/landlord's agent or broker at first contact and shall provide written
confirmation of that disclosure to the seller/landlord's agent or broker not
later than execution of a purchase agreement or lease.” ( Article 16 - Standard
of Practice 16-10 )
WORKING WITH CUSTOMERS / BUYERS AS A SELLER'S AGENT:
When a
Customer/Buyer approaches you concerning a Listing where you are a SELLER'S
AGENT:
· If the Customer/Buyer is not represented by another Licensee, you must disclose to that Customer/Buyer your status as the SELLER'S AGENT. You would inform the Customer/Buyer of the duties that the Tennessee Law requires you to give to him. If the Customer/Buyer will sign a Disclosure Form at this time, have him do so. If he refuses to sign a Disclosure Form at this time, inform him that the Law requires that you have a Written Disclosure Form signed prior to assisting the Customer/Buyer in preparing an Offer to Purchase.
· If the Customer/Buyer is represented by another Licensee, then no written agency disclosure is required of you.
TRANSACTION BROKER WHEN WORKING WITH A CUSTOMER/BUYER WHO IS NOT
REPRESENTED BY ANOTHER AGENT ON YOUR LISTING?
As a SELLER'S AGENT you have promised to be LOYAL and OBEY your SELLER CLIENT, in addition to the other seven duties required by LAW. Why would you now remove your CLIENT'S two most valuable duties? Put yourself in the SELLER'S position - you obligated yourself to nine specific Agency Duties and to deliver some specific services as HIS AGENT. Now, as his advocate and representative, you are asking if he will allow you to abandon him.
If you work with the CUSTOMER/BUYER as a SELLER'S AGENT, you would owe to him the same seven duties a FACILITATOR/TRANSACTION BROKER would owe to him. You may work with that Customer/Buyer who is not represented by another agent, as your SELLER'S AGENT with a written disclosure stating your status as a SELLER'S AGENT and the seven duties you would owe to that Customer/Buyer. You would then be able to assist a Customer/Buyer in providing information, completing an Offer to Purchase, and presenting that Offer to your SELLER CLIENT as the SELLER'S AGENT.
The only time you would need to change your status from a SELLER'S AGENT to a FACILITATOR/
TRANSACTION BROKER status would be when the Customer/Buyer requested you to represent him as a BUYER'S AGENT. Having already discussed your Company Policy and Procedures for changing agency relationships with your SELLER CLIENT prior to obtaining the Listing Contract, you would now go back to your SELLER CLIENT for his consent to allow you to change your status. If you can convince him, then you may change your status. Your Company Policy and Procedures will dictate how you do this and which agency relationship you may default to - FACILITATOR/TRANSACTION BROKER or DUAL AGENCY
.
If it is your intention to RERESENT both your SELLER CLIENT and your BUYER CLIENT in the same transaction, you must represent them as a DISCLOSED DUAL AGENT. You cannot REPRESENT them as a SELLER’S AGENT and as a BUYER’S AGENT.
YOU
CANNOT WORK AS A SELLER'S AGENT FOR YOUR SELLER CLIENT AND AS A
FACILITATOR/TRANSACTION BROKER FOR A CUSTOMER/BUYER IN THE SAME TRANSACTION.
YOU CAN WEAR ONLY ONE "AGENCY HAT" AT A TIME IN THE SAME TRANSACTION.