Lesson 8: Real Estate Agency Law
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Transcript of Lesson 8: Real Estate Agency Law
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Lesson 8: Lesson 8:
Real Estate Real Estate
Agency LawAgency Law
Principles of California Real Estate
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Definitions
Agency relationship: Established when one person authorizes another to represent her in dealings with other people (third parties).
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Definitions
Agency relationship: Established when one person authorizes another to represent her in dealings with other people (third parties).Person authorizing another to represent
her: principal.Person authorized to act as principal’s
representative: agent.
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Agency Relationship
Seller or buyer hires a broker to act as representative (agent) in a real estate transaction.
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Agency Relationship
Seller or buyer hires a broker to act as representative (agent) in a real estate transaction.
Many real estate transactions involve more than one agency relationship:each party may have own agenttypical transaction also involves real
estate salespersons working for brokers
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Agency Law
Agency relationship has important legal consequences for both parties:
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Agency Law
Agency relationship has important legal consequences for both parties:
1.Dealing with agent may be legal equivalent of dealing with principal directly.
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Agency Law
Agency relationship has important legal consequences for both parties:
1.Dealing with agent may be legal equivalent of dealing with principal directly.
2.Agent owes certain legal duties to his principal.
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Governs agency relationships and establishes agent’s powers and duties.
Applies to agency relationships between: lawyer and client trustee and beneficiaryreal estate agent and seller or buyer
General Agency Law
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Creating an Agency
Duties and liabilities of agency relationship arise automatically when relationship is created.
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Creating an Agency
Duties and liabilities of agency relationship arise automatically when relationship is created.
Under general agency law, agency relationships created by:express agreementratificationestoppel implication
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Creating an Agency Express agreement
Principal appoints someone to act as his agent, and agent accepts appointment. Most agencies created by express
agreement.
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Creating an Agency Express agreement
Principal appoints someone to act as his agent, and agent accepts appointment. Most agencies created by express
agreement.
Examples: listing agreementbuyer agency agreementpower of attorney
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Express agency agreement must meet some—but not all—requirements for valid contract:mutual consent competent partieslawful purpose
Creating an Agency Express agreement
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Express agency agreement must meet some—but not all—requirements for valid contract:mutual consent competent partieslawful purpose
Consideration NOT required.
Agency relationship can exist even if principal isn’t compensating agent.
Creating an Agency Express agreement
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Valid agency can be created with oral agreement (but written agreement always best).Agency relationship begins as soon as
parties agree to it.
Creating an Agency Express agreement
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Valid agency can be created with oral agreement (but written agreement always best).Agency relationship begins as soon as
parties agree to it.
Without written agreement, broker can’t sue client for compensation.
Creating an Agency Express agreement
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Creating an Agency Ratification
Principal gives approval—after the fact—to acts not authorized at time they were performed.
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Creating an Agency Ratification
Principal gives approval—after the fact—to acts not authorized at time they were performed.
Principal may ratify agency by:expressly approving unauthorized acts
or accepting benefits of unauthorized acts
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Agency is created by estoppel when: apparent agent acts on behalf of principal
without authorizationprincipal allows third party to believe
actions were authorized
Creating an AgencyEstoppel
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Agency is created by estoppel when: apparent agent acts on behalf of principal
without authorizationprincipal allows third party to believe
actions were authorized
The principal is estopped (prohibited) from denying agency in order to protect innocent third party.
Creating an AgencyEstoppel
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Creating an Agency Implication
One person’s behavior implies that he’s acting as another person’s agent.
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Creating an Agency Implication
One person’s behavior implies that he’s acting as another person’s agent.
If a person believes that someone is acting as her agent, and that someone fails to correct that impression, he may be held to owe agency duties to the first person.
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Agency by implication is similar to agency by estoppel, except:in agency by estoppel, principal must
acknowledge agency for protection of third party
Creating an Agency Implication
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Agency by implication is similar to agency by estoppel, except:in agency by estoppel, principal must
acknowledge agency for protection of third party
in agency by implication, agent must acknowledge agency for protection of principal
Creating an Agency Implication
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SummaryCreating an Agency Relationship
Agency Express agreement Power of attorney Ratification Estoppel Implication
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Legal Effects of Agency
Dealing with agent can be the legal equivalent of dealing with principal:agent’s actions may be binding on
principalprincipal may be held liable for agent’s
mistakes/misconductprincipal may be held to know information
known by agent
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Legal Effects of Agency Agent’s actions bind principal
General rule: authorized acts performed by agent are legally binding on principal, as if principal had performed acts himself.
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Legal Effects of Agency Agent’s actions bind principal
General rule: authorized acts performed by agent are legally binding on principal, as if principal had performed acts himself.
Principal typically bound only by agent’s acts that are within the scope of authority granted by principal.
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Agent’s Authority General agent
General agent: Agent who is authorized to act in one or more specified areas of principal’s affairs.Within those areas, general agent has
broad authority.Often handles all matters for particular
business/property owned by principal (example: property managers).
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Agent’s Authority Special agent
Special agent: Agent is authorized to do only a specific thing or conduct a specific transaction. Broker typically authorized to represent
seller/buyer only in single transaction.Broker’s authority usually quite limited
in that single transaction.
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Agent’s Authority Actual vs. apparent authority
Two types of agency authority: actualapparent
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Actual vs. Apparent Authority Actual authority
Actual authority: Written or oral authority granted to agent by principal.
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Actual vs. Apparent Authority Actual authority
Actual authority: Written or oral authority granted to agent by principal.Express actual authority: when
principal specifically directs agent to do something.
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Actual vs. Apparent Authority Actual authority
Actual authority: Written or oral authority granted to agent by principal.Express actual authority: when
principal specifically directs agent to do something.
Implied actual authority: agent’s additional authority to do whatever necessary to carry out acts expressly authorized by principal.
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Principal is bound by agent’s actions if within scope of agent’s actual authority.
Principal may also be bound by actions within scope of agent’s apparent authority.
Actual vs. Apparent Authority Actual authority
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Actual vs. Apparent Authority Apparent authority
Apparent authority: Authority agent appears to have, although principal didn’t actually grant it.
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Actual vs. Apparent Authority Apparent authority
Apparent authority: Authority agent appears to have, although principal didn’t actually grant it.Principal not bound by unauthorized
actions unless she’s aware of them and her conduct indicates approval.
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If principal fails to deny that apparent agent’s actions are authorized, and third party relies on agent’s apparent authority, principal may be bound by agent’s actions.
Third party should always try to verify agent’s authority and determine scope.
Actual vs. Apparent Authority Apparent authority
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Summary Agent’s Actions Bind Principal
Authorized actions are binding Scope of authority Actual authority Apparent authority Ostensible agent
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Legal Effects of Agency Vicarious liability
Tort: mistake, accident, or misconduct resulting in injury/financial harm to another.Party committing tort may be held liable
and required to compensate injured party.
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Legal Effects of Agency Vicarious liability
Tort: mistake, accident, or misconduct resulting in injury/financial harm to another.Party committing tort may be held liable
and required to compensate injured party.
If agent commits tort, principal may be held liable under theory of vicarious liability.
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Vicarious liability: principal liable for agent’s torts as if he had committed them himself.
Legal Effects of Agency Vicarious liability
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Vicarious liability: principal liable for agent’s torts as if he had committed them himself.Person injured by agent may sue
principal as well as agent.
Legal Effects of Agency Vicarious liability
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Vicarious liability: principal liable for agent’s torts as if he had committed them himself.Person injured by agent may sue
principal as well as agent. Principal and agent jointly responsible
for paying any judgment awarded to plaintiff.
Legal Effects of Agency Vicarious liability
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Injured party’s chances of collecting judgment increase when two defendants are responsible for paying judgment.Even if one defendant doesn’t pay, the
other may.
Legal Effects of Agency Vicarious liability
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If innocent principal is vicariously liable for agent’s actions, he can sue agent.
Legal Effects of Agency Vicarious liability
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If innocent principal is vicariously liable for agent’s actions, he can sue agent.Agent must reimburse principal for any
money paid to third party. Principal must be able to enforce
judgment against agent.
Legal Effects of Agency Vicarious liability
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A principal can be vicariously liable both for acts of his broker and for acts of salesperson working for his broker.
Legal Effects of Agency Vicarious liability
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A principal can be vicariously liable both for acts of his broker and for acts of salesperson working for his broker.
A broker can be vicariously liable for negligent or wrongful acts of her salesperson.
Legal Effects of Agency Vicarious liability
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Legal Effects of Agency Imputed knowledge rule
Under general agency law, principal is held to have notice of information in agent’s possession.Agent’s knowledge is imputed to
principal.True even if agent never actually tells
principal.
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If agent knows something that third party should be told, principal held to know that information as well.
Legal Effects of Agency Imputed knowledge rule
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If agent knows something that third party should be told, principal held to know that information as well.
Principal may be held responsible for failing to disclose that information to third party, even if agent never actually told principal.
Legal Effects of Agency Imputed knowledge rule
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Summary Vicarious Liability and
Imputed Knowledge
Tort Vicarious liability Imputed knowledge
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Agency Duties
Agency law imposes legal duties (standards of conduct) on agent.
Two broad categories:duties agent owes to principalduties agent owes to third parties
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Duties to the Principal
Agency is fiduciary relationship: agent is fiduciary in relation to principal.
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Duties to the Principal
Agency is fiduciary relationship: agent is fiduciary in relation to principal.
Fiduciary: someone who acts for benefit of another in relationship founded on trust and confidence.
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Duties to the Principal
Agent owes fiduciary duties to principal :reasonable care and skillobedience and utmost good faithaccountingloyaltydisclosure of material facts
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Duties to the Principal
Agent owes fiduciary duties to principal :reasonable care and skillobedience and utmost good faithaccountingloyaltydisclosure of material facts
Duties are owed to principal from time agency relationship begins through closing.
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Duties to the Principal Reasonable care and skill
When representing principal, agent must use same degree of care and skill ordinarily used by others competently engaged in same business.
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Duties to the Principal Reasonable care and skill
When representing principal, agent must use same degree of care and skill ordinarily used by others competently engaged in same business. Agent liable to principal for any harm
caused by carelessness or incompetence.
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Duties to the Principal Reasonable care and skill
When representing principal, agent must use same degree of care and skill ordinarily used by others competently engaged in same business. Agent liable to principal for any harm
caused by carelessness or incompetence.Agent is compared to competent real
estate agents, not average citizen.
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Duties to the Principal Obedience and good faith
Agent must obey principal’s instructions in good faith. If principal suffers loss because agent
didn’t follow instructions, agent can be held liable.
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Duties to the Principal Accounting
Agent must avoid commingling, or mixing any trust funds with his or her own funds.
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Duties to the Principal Accounting
Agent must avoid commingling, or mixing any trust funds with his or her own funds.
Agent must regularly report to principal on status of trust funds.
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Duties to the Principal Accounting
Agent must avoid commingling, or mixing any trust funds with his or her own funds.
Agent must regularly report to principal on status of trust funds.In California, a real estate broker must
deposit all trust funds in special trust account to prevent commingling or improper use of the funds.
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Duties to the PrincipalLoyalty
Agent must put principal’s interests above those of third party, and above agent’s own interests.
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Duties to the PrincipalLoyalty
Agent must put principal’s interests above those of third party, and above agent’s own interests.
Agent may not take any action detrimental to principal’s interests in transaction.
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Loyalty Confidentiality
If principal tells agent something in confidence, agent must not disclose it to third parties or use it for his own benefit.Part of duty of loyalty
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Agent doesn’t owe any duty of confidentiality to third parties:If buyer tells seller’s agent something
useful to seller, agent must tell seller.
Loyalty Confidentiality
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Agent doesn’t owe any duty of confidentiality to third parties:If buyer tells seller’s agent something
useful to seller, agent must tell seller.If seller tells buyer’s agent something
useful to buyer, agent must tell buyer.
Loyalty Confidentiality
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Loyalty Secret profits
Agent can’t have an interest in the transaction without principal’s consent.Agent can’t collect any secret profit: a
financial benefit agent receives without principal’s consent.
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Loyalty Secret profits
Agent can’t have an interest in the transaction without principal’s consent.Agent can’t collect any secret profit: a
financial benefit agent receives without principal’s consent.
Buyer acting on own behalf need not disclose intent to make profit off deal.
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Duties to the Principal Disclosure of material facts
Agent must disclose any facts that could influence principal’s judgment in transaction.
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Duties to the Principal Disclosure of material facts
Agent must disclose any facts that could influence principal’s judgment in transaction.
All these must be disclosed:offers to purchaseproperty’s true valueany relationship between agent and buyerdual agency
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Seller’s agent must present all offers to purchase: even if offer seems unacceptable
Duties to the Principal Disclosure of material facts
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Seller’s agent must present all offers to purchase: even if offer seems unacceptableeven if not accompanied by good faith
deposit
Duties to the Principal Disclosure of material facts
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Seller’s agent must present all offers to purchase: even if offer seems unacceptableeven if not accompanied by good faith
depositunless clearly frivolous, or when seller
instructs agent not to present certain types of offers
Duties to the Principal Disclosure of material facts
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Failure to disclose property’s true value is breach of seller’s agent’s fiduciary duty.
Duties to the Principal Disclosure of material facts
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Failure to disclose property’s true value is breach of seller’s agent’s fiduciary duty.Seller often relies on agent’s advice in
setting listing price. By misleading seller, unscrupulous agent
could arrange bargain for friend, or collect secret profit.
Duties to the Principal Disclosure of material facts
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Seller’s agent must disclose any relationship with prospective buyer.Potential for conflict of interest.
Duties to the Principal Disclosure of material facts
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Seller’s agent must disclose any relationship with prospective buyer.Potential for conflict of interest.
Seller’s agent must also disclose if he’s buying interest in the property himself.
Duties to the Principal Disclosure of material facts
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Seller’s agent must disclose dual agency.Broker may act as dual agent only if both
principals consent to arrangement.
Duties to the Principal Disclosure of material facts
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Seller’s agent must disclose dual agency.Broker may act as dual agent only if both
principals consent to arrangement.Broker must always exercise caution
when acting as a dual agent, because it’s difficult to represent two parties who have conflicting interests.
Duties to the Principal Disclosure of material facts
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Summary Duties to the Principal
Reasonable skill and care Obedience and good faith Accounting Loyalty Disclosure of material facts
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Duties to Third Parties
Agent also owes duties to third parties:reasonable care and skillgood faith and fair dealingdisclosure of material facts
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Duties to Third Parties Reasonable care and skill
Agent owes duty of reasonable care and skill to third parties as well as to principal.
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Duties to Third Parties Good faith and fair dealing
Both principal and agent owe third parties duty of good faith and fair dealing.Seller and seller’s agent must treat
prospective buyers fairly.
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Duties to Third Parties Avoiding misrepresentation
Duty of good faith and fair dealing requires agent to avoid making inaccurate or misleading statements.
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Duties to Third Parties Avoiding misrepresentation
Duty of good faith and fair dealing requires agent to avoid making inaccurate or misleading statements.
Unintentional as well as intentional misrepresentations may amount to fraud, giving third party the right to rescind purchase agreement or sue for damages.
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Avoiding Misrepresentation Opinions, predictions, and puffing
But a party generally can’t sue agent based on agent’s opinions, predictions, or puffing. Puffing: nonfactual or exaggerated
statements, which a party should recognize as unreliable.
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Recently, CA courts more willing to treat puffing as representations of material facts, because unsophisticated buyers might rely on statements and buy property.Be aware that sales talk might be
interpreted as statement of fact—leading to charge of misrepresentation.
Avoiding Misrepresentation Opinions, predictions, and puffing
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Good Faith and Fair Dealing Disclosure of material facts
The duty of good faith and fair dealing requires agent to disclose material facts about the property to prospective buyers.
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Disclosure of Material Facts Latent defects
Material facts include latent defects.Latent defect: problem with property not
discoverable through casual inspection.
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Disclosure of Material Facts Latent defects
Material facts include latent defects.Latent defect: Problem with property not
discoverable through casual inspection.
If agent (or seller) knows of any latent defects, she must disclose them to prospective buyers, even if buyer doesn’t ask.
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If seller asks agent to conceal a latent defect, agent must refuse.Agency duties don’t require or allow
agent to violate law on principal’s behalf.
Disclosure of Material Facts Latent defects
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Property may be advertised “as is” (the seller is not claiming the property is in good condition).This doesn’t relieve seller or seller’s
agent of duty to disclose latent defects.
Disclosure of Material Facts Latent defects
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Disclosure of Material Facts Exceptions to duty to disclose
Under CA law, agent/seller are not required to disclose:house was once occupied by person with
AIDS (in fact, this must NOT be disclosed)
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Disclosure of Material Facts Exceptions to duty to disclose
Under CA law, agent/seller are not required to disclose:house was once occupied by person with
AIDS (in fact, this must NOT be disclosed)death on premises more than three years
earlier (regardless of cause)
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Disclosure of Material Facts Exceptions to duty to disclose
Under CA law, agent/seller are not required to disclose:house was once occupied by person with
AIDS (in fact, this must NOT be disclosed)death on premises more than three years
earlier (regardless of cause) If specifically asked about deaths on
property, agent must answer truthfully.
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Disclosure of Material Facts Property inspection
In residential transactions, agent must inspect property and disclose any problems discovered—she cannot simply rely on seller’s information about property.
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Disclosure of Material Facts Property inspection
In residential transactions, agent must inspect property and disclose any problems discovered—she cannot simply rely on seller’s information about property.
Duty to inspect applies to any agent listing a one- to four-unit residential property (except new home in subdivision offered for sale for first time).
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Agent is not required to inspect areas that are not reasonably accessible to visual inspection.If property is condominium unit, agent
needs to inspect only the unit for sale.
Disclosure of Material Facts Property inspection
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Disclosure of Material FactsTransfer disclosure statement
Buyer in transaction involving 1- to 4-unit residential property must be given a Real Estate Transfer Disclosure Statement.
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Disclosure of Material FactsTransfer disclosure statement
Buyer in transaction involving 1- to 4-unit residential property must be given a Real Estate Transfer Disclosure Statement.
Transfer disclosure statement has separate sections to be filled out by seller, listing agent, and selling agent.
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Disclosure of Material FactsTransfer disclosure statement
Buyer in transaction involving 1- to 4-unit residential property must be given a Real Estate Transfer Disclosure Statement.
Transfer disclosure statement has separate sections to be filled out by seller, listing agent, and selling agent.
Agent should fill out only his own section of the form—not the seller’s sections.
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Selling agent is responsible for giving completed disclosure statement to buyer.
Disclosure of Material FactsTransfer disclosure statement
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Selling agent is responsible for giving completed disclosure statement to buyer.
Transactions exempt from transfer disclosure statement requirement are those resulting from foreclosure, probate, divorce, or other court orders
Disclosure of Material FactsTransfer disclosure statement
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Disclosure of Material Facts Lead-based paint
Lead-based paint disclosure law: federal law requires sellers and landlords to disclose any lead-based paint hazards to prospective buyers or tenants.
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Disclosure of Material Facts Lead-based paint
Lead-based paint disclosure law: federal law requires sellers and landlords to disclose any lead-based paint hazards to prospective buyers or tenants.Applies to transactions involving housing
built before 1978.
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Disclosure of Material Facts Lead-based paint
Lead-based paint disclosure law: federal law requires sellers and landlords to disclose any lead-based paint hazards to prospective buyers or tenants.Applies to transactions involving housing
built before 1978. Intended to reduce incidence of lead
poisoning, which causes severe brain and organ damage in young children.
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Seller/landlord must:
1. disclose location of any lead-based paint
Disclosure of Material Facts Lead-based paint
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Seller/landlord must:
1. disclose location of any lead-based paint
2. provide copy of any existing lead-based paint inspection report
Disclosure of Material Facts Lead-based paint
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Seller/landlord must:
1. disclose location of any lead-based paint
2. provide copy of any existing lead-based paint inspection report
3. give buyers/tenants EPA pamphlet on lead-based paint
Disclosure of Material Facts Lead-based paint
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Buyers (not tenants) get a 10-day period to have home tested for lead-based paint.
Disclosure of Material Facts Lead-based paint
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Buyers (not tenants) get a 10-day period to have home tested for lead-based paint.
Specific warnings must be attached to purchase agreement/lease.
Disclosure of Material Facts Lead-based paint
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Buyers (not tenants) get a 10-day period to have home tested for lead-based paint.
Specific warnings must be attached to purchase agreement/lease.
Parties must sign statements acknowledging law’s requirements have been fulfilled.
Disclosure of Material Facts Lead-based paint
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Breach of Duty
If agent breaches duties to principal and/or third parties, what are the consequences?Tort liabilityDisciplinary action
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Breach of Duty Tort liability
Breach of duty may result in tort lawsuit against agent (injured party can sue agent). Injured party might be either agent’s
principal or third party.
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Remedies for injured party:compensatory damagesrescissionrefund of agent’s commission or any
secret profits made
Breach of Duty Tort liability
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Tort Liability Vicarious liability
If salesperson commits tort against buyer, buyer can sue salesperson—and also salesperson’s broker and broker’s principal (seller).
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Tort Liability Vicarious liability
If salesperson commits tort against buyer, buyer can sue salesperson—and also salesperson’s broker and broker’s principal (seller).
Defendants may all be held liable for any damages awarded.
If seller did nothing wrong but had to pay damages, seller can sue broker for amount paid.
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Breach of Duty License suspension or revocation
Agent’s breach of duty usually is also a violation of the Real Estate Law, resulting in license suspension, revocation, or other disciplinary measures.
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Summary Duties to Third Parties
Good faith and fair dealing Latent defects Property inspection Transfer disclosure statement Breach of duty
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Terminating an Agency
Termination of agency: agent no longer authorized to represent principal.
Most agency duties and liabilities end.
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Terminating an Agency
Termination of agency: agent no longer authorized to represent principal.
Most agency duties and liabilities end.
Agency terminated in two ways:
1. by actions of parties
2. by operation of law
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Terminating an Agency Action of the parties
Agency based on mutual consent, so relationship can be terminated by:mutual agreement revocation by the principalrenunciation by the agent
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Termination by the Parties Mutual agreement
Principal and agent can terminate agency by mutual agreement at any time.
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Termination by the Parties Mutual agreement
Principal and agent can terminate agency by mutual agreement at any time.Get termination in writing, especially if
agency based on written contract.
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Termination by the Parties Mutual agreement
Principal and agent can terminate agency by mutual agreement at any time.Get termination in writing, especially if
agency based on written contract.Notify any third parties agent’s been
dealing with.
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Termination by the Parties Principal revokes
Principal can fire agent for any reason—or no reason at all.However, revocation before agreed
termination date might breach the contract—in that case, agent could sue principal for damages.
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Exception to revocation rule: agency coupled with interest can’t be revoked.
Agency coupled with interest: agent has financial stake or other interest in agency subject matter.
Termination by the Parties Principal revokes
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Termination by the Parties Agent renounces
Agent may terminate agency at any time without principal’s consent.However, renunciation before agreed
termination date might breach the contract—in that case, principal could sue agent for damages.
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Termination by the Parties Termination by operation of law
Agency will terminate automatically if:agency term expiresagency’s purpose is fulfilled either party dies/becomes incompetentproperty that was subject matter of
agency is extinguished
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Termination by Operation of Law
Agent’s authority ends automatically on termination date of agency agreement.
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Termination by Operation of Law
Agent’s authority ends automatically on termination date of agency agreement.If no termination date specified in
contract, agency will expire after reasonable time.
“Reasonable time” may have to be determined by a court.
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Termination by Operation of Law Purpose fulfilled
Agency terminates when its purpose has been fulfilled.
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Termination by Operation of Law Purpose fulfilled
Agency terminates when its purpose has been fulfilled.
Example: Seller hires broker to find buyer for his property. When buyer is found and transaction closes, purpose of agency has been met and agency ends.
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Termination by Operation of Law Death or incompetence
Agency terminated automatically if either party dies or becomes legally incompetent.
Even before agent is informed of terminating event, agent’s actions are no longer authorized.
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Termination by Operation of Law Subject matter extinguished
Agency ends if property that is subject matter of agency is “extinguished” (destroyed or title is transferred).
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Termination by Operation of Law Subject matter extinguished
Agency ends if property that is subject matter of agency is “extinguished” (destroyed or title is transferred).
Example: Rob manages office building. When owner sells the building, the subject of Rob’s agency is extinguished. The agency is terminated by operation of law.
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Summary Terminating an Agency
Termination by the parties Agency coupled with an interest Termination by operation of law
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Real Estate Agency Relationships Typical residential transaction
Sale of home usually involves more than one real estate agent: listing brokerlisting salespersonselling broker selling salespersonother cooperating agents who showed
home to other prospective buyers
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Real Estate Agency Relationships Terminology
Selling agent Cooperating agent In-house sale Cooperative saleListing agent
Real estate agentBrokerSalesperson
ClientCustomer
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Real Estate Agency Relationships Historical background
Previously, there was considerable confusion as to who the agent represented in the transaction.
A “Unilateral offer of subagency” provision in listing agreements provided that any cooperating MLS agent who found the buyer represented the seller.
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However, many buyers thought the agent they were working with was representing them, not the seller.
Some agents were also confused about which party they represented.
Real Estate Agency Relationships Historical background
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Real Estate Agency Relationships Historical background
Agent might act as if she represented buyer, even though legally she represented seller, which created an inadvertent dual agency.
Inadvertent (or accidental) dual agency: agent accidentally ended up representing both buyer and seller, without parties’ knowledge or consent.
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In the 1990s, the unilateral offer of subagency was replaced with a “cooperation and compensation” provision: other MLS members act as cooperating agents, not seller’s subagents.
Real Estate Agency Relationships Historical background
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In the 1990s, the unilateral offer of subagency was replaced with a “cooperation and compensation” provision: other MLS members act as cooperating agents, not seller’s subagents.
Cooperating agents can choose to represent either seller or buyer.
Real Estate Agency Relationships Historical background
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Historical Background Why agency representation matters
Buyer or seller needs to know who agent represents in order to evaluate what agent says or doesn’t say.Buyer can’t depend on seller’s agent for
advice, and seller can’t depend on buyer’s agent.
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Summary Real Estate Agency Relationships
Listing agent Selling agent Cooperating agent Unilateral offer of subagency Inadvertent dual agency
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Types of Agency Relationships
Three types of agency relationships in real estate transactions are: seller agencybuyer agencydual agency
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Types of Agency Relationships Seller Agency
Traditionally, real estate agents almost always represented sellers.
Buyer agency now common, but seller agency still most common agency relationship.
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Seller Agency Establishing seller agency
Typically created with written listing agreement (employment contract):
1. seller hires broker to find buyer for property
2. in exchange for broker’s efforts, seller agrees to pay broker a commission under certain conditions
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Seller agency can be established by oral agreement—even actions of seller and agent may be enough to create agency relationship.
Seller Agency Establishing seller agency
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Seller agency can be established by oral agreement—even actions of seller and agent may be enough to create agency relationship.But without written agreement, broker is
not entitled to sue seller for commission.
Seller Agency Establishing seller agency
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Seller Agency Role of seller’s agent
Promoting seller’s interests: marketing property to best advantage, finding buyer, and negotiating sale on most favorable terms possible. Must be done according to seller’s
instructions and rules of agency law.
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Seller Agency Working with buyers
May perform some services for buyers: filling out offer, helping buyer apply for financing.Helps sell property: no violation of agent’s
duty of loyalty to seller.
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Seller Agency Working with buyers
May perform some services for buyers: filling out offer, helping buyer apply for financing.Helps sell property: no violation of agent’s
duty of loyalty to seller.Must be sure buyer knows agent
represents seller only—never give buyer advice.
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Summary Seller Agency
Establishing seller agency Role of a seller’s agent Working with buyers
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Types of Agency Relationships Buyer agency
Advantages of buyer agency:buyer gets the agent’s loyalty and
confidentiality
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Types of Agency Relationships Buyer agency
Advantages of buyer agency:buyer gets the agent’s loyalty and
confidentialitybuyer gets the agent’s objective
evaluation of the property, and advice on how much to offer
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Types of Agency Relationships Buyer agency
Advantages of buyer agency:buyer gets the agent’s loyalty and
confidentialitybuyer gets the agent’s objective
evaluation of the property, and advice on how much to offer
buyer gets help with negotiating the transaction
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Types of Agency Relationships Buyer agency
Advantages of buyer agency:buyer gets the agent’s loyalty and
confidentialitybuyer gets the agent’s objective
evaluation of the property, and advice on how much to offer
buyer gets help with negotiating the transaction
buyer gets access to more properties
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Buyer Agency Establishing buyer agency
Written buyer agency agreements typically contain these provisions:term of the agencycharacteristics of the property the buyer’s
looking forprice range of the propertyconditions under which the fee will be earnedwho will pay the feethe agent’s contractual duties
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Buyer Agency Compensation
Three typical methods of compensating a buyer’s agent:retainerseller-paid feebuyer-paid fee
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Buyer Agent’s Compensation Retainer
Retainer: a fee paid up front, before agent starts working for buyer.
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Buyer Agent’s Compensation Retainer
Retainer: a fee paid up front, before agent starts working for buyer.
Typically nonrefundable, but if buyer’s agent becomes entitled to other compensation (such as seller-paid fee), retainer will be credited against that amount.
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Buyer Agent’s Compensation Seller-paid fee
Seller-paid fee: when buyer’s broker receives share of listing broker’s commission (also called a commission split).
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Buyer Agent’s Compensation Seller-paid fee
Seller-paid fee: when buyer’s broker receives share of listing broker’s commission (also called a commission split).
Most common compensation arrangement.
Agreement may be written or oral.Agency representation not determined by
which party is paying agent’s fee.
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Buyer Agent’s Compensation Buyer-paid fee
Buyer-paid fee protects agent if buyer purchases FSBO (seller not represented by agent and not paying any commission).
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Buyer Agent’s Compensation Buyer-paid fee
Buyer-paid fee protects agent if buyer purchases FSBO (seller not represented by agent and not paying any commission).Buyer-paid fee may be: hourly rate,
commission, or flat fee.
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Buyer Agent’s Compensation Buyer-paid fee
Buyer-paid fee protects agent if buyer purchases FSBO (seller not represented by agent and not paying any commission).Buyer-paid fee may be: hourly rate,
commission, or flat fee.Agent and buyer must enter buyer agency
agreement specifying terms and conditions of fee payment.
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Summary Buyer Agency
Establishing buyer agency Advantages of buyer agency Compensation
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Types of Agency Relationships Dual agency
Dual agency: when real estate agent represents both seller and buyer in same transaction.
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Types of Agency Relationships Dual agency
Dual agency: when real estate agent represents both seller and buyer in same transaction.
Requires written consent of both parties. Dual agent owes fiduciary duties to both
clients.
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Dual Agency Conflict of interest
Inherent conflict of interest: seller wants highest possible sales price, while buyer wants lowest price.Difficult for dual agent to promote
interests of both parties at same time.However, in some situations, parties
willing to accept dual agency.
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If dual agent works within certain limitations, she can avoid violating agency duties owed to either party.
Each party should be warned that he or she will not receive full representation.
Dual Agency Conflict of interest
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Dual Agency Confidential information
Dual agent must not reveal confidential information from one party to other, or manipulate either party based on confidential information.
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Dual Agency Confidential information
Dual agent must not reveal confidential information from one party to other, or manipulate either party based on confidential information.Must explain to each party at outset
that he must withhold certain information.
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Dual Agency Confidential information
Dual agent must not reveal confidential information from one party to other, or manipulate either party based on confidential information.Must explain to each party at outset
that he must withhold certain information.
Each party should understand agent will keep other party’s negotiating position confidential.
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Dual Agency Impartiality
Dual agent must do his best to be impartial and treat both clients equally.
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Dual Agency Impartiality
Dual agent must do his best to be impartial and treat both clients equally.
Dual agency generally inappropriate when agent has ongoing personal or business relationship with one party.
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Dual Agency Disclosure
Dual agent must obtain written consent from both parties.
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Dual Agency Disclosure
Dual agent must obtain written consent from both parties.
Failure to disclose violates Real Estate Law.Agent will face disciplinary action.Neither party may have to pay agent’s
commission. Either party could rescind transaction.
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Dual Agency Inadvertent dual agency
Seller’s agent working closely with buyer may unintentionally develop agency relationship with buyer, creating an inadvertent dual agency.
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Dual Agency Inadvertent dual agency
Seller’s agent working closely with buyer may unintentionally develop agency relationship with buyer, creating an inadvertent dual agency.Agent should comply with disclosure
requirements and act in accordance.
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Dual Agency Inadvertent dual agency
Seller’s agent working closely with buyer may unintentionally develop agency relationship with buyer, creating an inadvertent dual agency.Agent should comply with disclosure
requirements and act in accordance. Agent should avoid conduct giving other
party wrong impression.
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Agency Disclosure Requirements
Agency Relationships in Residential Real Property Transactions Act: requires all agents in transaction to disclose to buyer and seller which party (or parties) they’re representing.
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Agency Disclosure Requirements
Agency Relationships in Residential Real Property Transactions Act: requires all agents in transaction to disclose to buyer and seller which party (or parties) they’re representing. Applies to any transaction for property
with 1-4 dwelling units.
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Compliance involves two main steps:
1. giving parties agency disclosure form
Agency Disclosure Requirements
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Compliance involves two main steps:
1. giving parties agency disclosure form
2. making specific disclosures and giving parties agency confirmation statement
Agency Disclosure Requirements
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Agency disclosure form: explains duties of seller’s agent, buyer’s agent, and dual agent.
Agency Disclosure Requirements
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Agency disclosure form: explains duties of seller’s agent, buyer’s agent, and dual agent.Doesn’t indicate which parties the agents
in that specific transaction represent.Just provides general information about
different types of agents, their duties to their clients, and their duties to third parties.
Agency Disclosure Requirements
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Listing agent must give seller agency disclosure form before seller signs listing agreement.
Agency Disclosure Requirements
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Listing agent must give seller agency disclosure form before seller signs listing agreement.
Selling agent must give buyer form as soon as practicable before buyer signs offer to purchase.
Agency Disclosure Requirements
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Selling agent also must give form to seller (or to listing agent) as soon as practicable before offer is presented.
Agency Disclosure Requirements
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Selling agent also must give form to seller (or to listing agent) as soon as practicable before offer is presented.
Each time agent gives form to one party, buyer or seller must sign form to acknowledge that he or she received copy.
Agency Disclosure Requirements
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Agency Disclosure Requirements Agency confirmation
Each agent also must inform parties, as soon as practicable, who he represents in transaction.
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Agency Disclosure Requirements Agency confirmation
Each agent also must inform parties, as soon as practicable, who he represents in transaction.
Disclosures must be confirmed in writing in agency confirmation statement (included in deposit receipt or separate document).
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Summary Dual Agency and Agency Disclosure
Dual agency Agency disclosure form Agency confirmation
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Broker/Salesperson Relationship
Legal relationship between salesperson and her broker: salesperson is agent of broker.Salesperson not licensed to represent
members of public directly, without broker.
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Broker/Salesperson Relationship
Legal relationship between salesperson and her broker: salesperson is agent of broker.Salesperson not licensed to represent
members of public directly, without broker.
Broker primarily responsible for supervising salesperson’s real estate activities.
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Broker/Salesperson Relationship Employee vs. independent contractor Salesperson classified either as employee or
independent contractor.Certain employment and tax laws apply only
to employees
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Broker/Salesperson Relationship Employee vs. independent contractor Salesperson classified either as employee or
independent contractor.Certain employment and tax laws apply only
to employees
Independent contractor: hired for particular job, allowed to use own judgment in carrying out work.
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Broker/Salesperson Relationship Employee vs. independent contractor Salesperson classified either as employee or
independent contractor.Certain employment and tax laws apply only
to employees
Independent contractor: hired for particular job, allowed to use own judgment in carrying out work.
Employee: supervised/controlled much more closely.
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Employee vs. Independent Contractor
Is person employee or independent contractor?
Factors include scheduling and manner of compensation:Employees generally work on employer-
set schedule, for hourly wage or salary.
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Employee vs. Independent Contractor
Is person employee or independent contractor?
Factors include scheduling and manner of compensation:Employees generally work on employer-
set schedule, for hourly wage or salary.Independent contractors generally set
own schedule and are paid per job or commission.
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Broker is independent contractor in relation to seller (or buyer): seller hires broker to find buyer for property—seller is primarily concerned with ultimate result, not how broker achieves result.
Employee vs. Independent Contractor
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Broker is independent contractor in relation to seller (or buyer): seller hires broker to find buyer for property—seller is primarily concerned with ultimate result, not how broker achieves result.
Salesperson may be broker’s employee or independent contractor: depends on broker supervision and method of compensation.
Employee vs. Independent Contractor
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If broker requires salesperson to work certain hours, gives detailed instructions on marketing properties, and pays salesperson hourly wage, salesperson would be broker’s employee.
Employee vs. Independent Contractor
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If broker requires salesperson to work certain hours, gives detailed instructions on marketing properties, and pays salesperson hourly wage, salesperson would be broker’s employee.Broker then must withhold money from
salesperson’s salary for income tax, social security, unemployment insurance, and workers’ compensation.
Employee vs. Independent Contractor
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Employee vs. Independent Contractor
Salesperson typically independent contractor: broker concerned with results (listings,
sales, and closings)salesperson compensated by
commissionbroker not required to withhold taxes
from salesperson’s compensation
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IRS requirements for salesperson to be considered independent contractor:
1. substantially all salesperson’s compensation from commissions
Employee vs. Independent Contractor
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IRS requirements for salesperson to be considered independent contractor:
1. substantially all salesperson’s compensation from commissions
2. salesperson works under written contract providing she won’t be treated as employee for federal tax purposes
Employee vs. Independent Contractor
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Even if salesperson is considered independent contractor for tax purposes, Real Estate Law makes broker responsible for supervising salesperson. Broker may be held liable for salesperson’s misconduct.
Employee vs. Independent Contractor
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Summary Employee vs. independent contractor
Employee Independent contractor IRS requirements Broker as independent contractor