Mass Agency Law
- How the Agency Law in Massachusetts Affects Sellers
- Massachusetts Mandatory Licensee-Consumer Relationship Disclosure Form
- Types of Agency Representation
HOW THE NEW AGENCY LAW IN MASSACHUSETTS AFFECTS SELLERS
RE/MAX First Choice and The Brackett & Bates Team have adopted the new law regarding Designated Agency mandated by the state of Massachusetts. The law was enacted July 1, 2005. Upon a Seller Client's meeting with a Real Estate Salesperson (hereafter referred to as "Associate") with the intent to market their property with that Associate, the Associate will provide the Seller with the "Massachusetts Mandatory Licensee-Consumer Relationship Disclosure" Form. The Associate will explain to the Seller that only that Associate represents them (Designated Seller Agent). This means that no other Associate of the firm RE/MAX First Choice represents the Seller and may in fact represent another party in Seller's real estate transaction.
The state of Massachusetts has created the new agency relationship of Designated Seller Agent in order to reduce the Seller's exposure to being sued for vicarious liability. Previously, the type of representation known as sub-agency (where any real estate agent of any company could represent the Seller in an offer to purchase real estate, as a "sub-agent" of the agent the Seller listed their property with) was standard procedure. Effective July 1, 2005, the Seller must provide written authorization to the use of sub-agents to represent them in an offer to purchase real estate. The Seller must also receive full explanation that the wrongful actions (or omissions) by the sub-agent may subject the Seller to legal liability for those wrongful actions (or omissions). The legal term for this scenario is "vicarious liability." Vicarious liability is the potential for a Seller to be held liable for a misrepresentation or an act or omission of the sub-agent when the Seller authorizes the licensee to offer sub-agency in the signing of a written notice. Again, RE/MAX First Choice and The Brackett & Bates Team have adopted the Designated Agency policy. We will not offer, endorse or honor sub-agency relationships.
The state of Massachusetts also recognizes dual agency. With a comprehensive explanation and written consent, a licensee (real estate agent) can practice dual agency and represent the seller and the buyer in the same transaction. The Brackett & Bates Team has determined we will not practice dual agency. Our mission statement incorporates the very definition of fiduciary duty: Loyalty, Confidentiality, Obedience, Full Disclosure, Diligence & Reasonable Care, Accounting. The definition of a Dual agent:
"A Dual Agent shall be neutral with regards to any conflicting interest of the seller and buyer. Consequently a dual agent cannot satisfy fully the duties of Loyalty, Disclosure and Obedience to lawful instructions which is required of an exclusive seller agent."
Our professional philosophy would be compromised if we practiced dual agency. We will still make appointments to show the home to Buyers who are not working with a real estate agent, but will explain that we have been hired by the Seller and will represent only the Seller and their interest in this transaction. And, as regulated by law, we must present properties honestly and accurately. We must also disclose known material defects in the real estate. If the Buyer is not comfortable with this knowledge, we can refer the Buyer to another real estate agent at RE/MAX First Choice who can represent them as a Designated Buyer Agent.
We hope we have clearly defined how the Brackett & Bates Team represents our clients. If you have any questions, please contact our team for a personal consultation.
MASSACHUSETTS MANDATORY LICENSEE-CONSUMER RELATIONSHIP DISCLOSURE FORM
This disclosure is provided to you, the consumer, by the real estate agent listed on this form. Make sure you read the entire form. It contains a 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.
COMSUMER INFORMATION AND RESPOSIBILTY:
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 know 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 SELCTION BELOW:
| Relationship with others affiliated with | __RE/MAX FIRST CHOICE REAL ESTATE (4575)__ |
| (Print name of real estate firm / 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).
__X__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. The 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 of 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 web site at www.mass.gov/dpl/.
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 web site at www.mass.gov/dpl/.
