(a) As used in this
section:
"Buyer" includes a vendee, lessee, party to an exchange, or
grantee of an option.
"Buyer's agent" means a real estate broker who acts as the
agent of the buyer.
"Contract between the buyer and seller" includes a purchase
contract, an option, an offer to purchase, a sales contract, an offer to lease,
or a lease.
"Listing brokerage firm" means the real estate brokerage firm
that obtains a listing of real estate for sale, lease, exchange (residential,
time share, industrial, or commercial) or for an interest in a residential
cooperative housing corporation.
"Seller" includes a vendor, lessor, party to an exchange, or
grantor of an option.
"Selling brokerage firm" means a real estate brokerage firm
that acts in cooperation with a listing broker and finds and obtains a buyer in
a transaction.
"Subagent" means a real estate brokerage firm or salesperson
to whom an agent delegates agency powers.
"Transaction" means any sale, lease, rent, or exchange of
real estate (residential, time share, industrial, or commercial) transaction or
a sale or exchange of, or option involving, an interest in a residential
cooperative housing corporation, but excluding leases for one year or
less.
(b) At the time a
listing brokerage firm obtains a listing, the listing brokerage firm shall
disclose the following:
(1) Whether the
seller authorizes the listing brokerage firm to appoint seller's subagents
through a multiple listing service or otherwise; and
(2) Whether the seller authorizes the listing
brokerage firm to share commissions with seller's subagents or buyer's agents.
The disclosure shall be in writing, dated, and signed by the
seller and the listing brokerage firm.
(c) Prior to preparing any contract between
the buyer and the seller, the following disclosure shall be made at least once
to the buyer, in writing or orally:
(1) If the
licensee acting as the listing brokerage firm is acting alone and providing
services to the buyer, the licensee shall disclose who the licensee represents
in the transaction;
(2) If the
licensee, acting in cooperation with a listing brokerage firm, has found the
buyer in the transaction, the licensee shall disclose who the licensee
represents in the transaction; or
(3) If there is no listing brokerage firm,
each licensee providing services to the buyer with respect to the transaction
shall disclose whether the licensee represents the buyer or the seller in the
transaction.
(d) Prior
to presenting a contract between the buyer and the seller to the seller, the
following disclosure shall be made at least once to the seller, in writing or
orally:
(1) The licensee acting as the
listing brokerage firm shall disclose to the seller who the selling brokerage
firm represents in the transaction; or
(2) If there is no listing brokerage firm,
each licensee involved in the transaction shall disclose to the seller whether
the licensee represents the buyer or the seller in the transaction.
(e) Any disclosure required by
subsections (c) and (d) shall be confirmed in writing in a separate paragraph
titled "AGENCY DISCLOSURE" in the contract between the buyer and the seller.
The title shall be in no less than ten-point bold print. No particular
disclosure language is required. To assist licensees, the commission approves
the following language:
"AGENCY DISCLOSURE(S):
________________________, and all licensees
(Print name of Selling Brokerage Firm,)
(or Listing Brokerage Firm if acting alone)
employed by or associated with the brokerage firm,
represents the_____________________. By
(Buyer or Seller)
initialing below, the Buyer and Seller confirm that oral or
written disclosure of such representation was provided to them before the
signing of this contract.
___________ _____________
Buyer's initials Seller's initials"
(f) Unless specifically restricted by the
real estate brokerage firm in writing, any real estate salesperson, employed by
or associated with a real estate brokerage firm, shall be authorized to make
the required disclosures on behalf of the real estate brokerage firm. Failure
to make the disclosure required by subsections (b), (c), and (d) or to obtain
the written confirmation thereof shall subject the real estate brokerage firm
and the real estate salesperson to disciplinary action by the commission.
(g) A licensee may not be the
agent for both the buyer and the seller without obtaining the written consent
of both the buyer and the seller. The written consent shall state that the
licensee made a full disclosure of the type of representation the licensee will
provide and shall briefly describe the type of representation the licensee will
provide to the buyer and to the seller. A general statement in the consent
signed by the buyer and seller that the licensee represents both buyer and the
seller is not sufficient.
(h) A
licensee representing a buyer shall disclose, orally or in writing, such agency
to the seller, or the listing brokerage firm if there is a listing brokerage
firm, before negotiations are initiated. The licensee shall disclose, orally or
in writing, to the seller, or the listing brokerage firm if there is a listing
brokerage firm, whether the licensee is, or intends to be, the buyer, before
negotiations are initiated.
(i) If
any change occurs in a transaction which makes a prior written or oral
disclosure required by this section incomplete, misleading, or inaccurate, the
licensee shall promptly make a revised written disclosure if the prior
disclosure was in writing, or a revised oral disclosure if the prior disclosure
was made orally, to the buyer or seller, or both, as the case may be. Any
revised written disclosure shall include the date of the revised disclosure and
be acknowledged separately by the signature of the buyer or seller, or both, as
the case may be.
(j) The obligation
of either the seller or buyer to pay compensation to a brokerage firm is not
determinative of the agency relationship.
(k) Nothing in this chapter shall affect the
validity of title to real property transferred, based solely on the reason that
any licensee failed to conform to the provisions of this chapter.
