PURPOSE: This rule makes very clear the
licensee's responsibility and relationship as an agent. It demands the licensee
make declaration of any personal involvement in a transaction in which the
licensee might have an interest. It prohibits his/her requiring the parties in
a transaction to use the service of any lending, title insurance or other
groups. It forbids any forms of related or direct profit on expenditures made
for a party in a transaction. The licensee must disclose all material facts
regarding the condition of property which s/he is offering for sale or
lease.
(1) A
licensee shall not acquire an interest in, sell, buy, exchange, rent or lease
any real estate, directly or indirectly, without first making the licensee's
status as a licensee known in writing to the other parties in the
transaction.
(2) Before buying,
exchanging, selling or leasing real estate for another party, the licensee
shall disclose in writing any ownership which a licensee has or will have and
the licensee's status as a licensee to all parties to the
transaction.
(3) A licensee shall
not advise against or discourage the use of the services of an attorney by any
party in any real estate transaction.
(4) Directed or Controlled Business.
(A) Definitions.
1. The term settlement service includes any
service provided in connection with a real estate sale, lease, trade, exchange
or settlement including, but not limited to, the following: mortgage or other
financing, title searches, title examinations, the provision of title
certificates, title insurance, hazard insurance, services rendered by an
attorney, the preparation of documents, property surveys, the rendering of
credit reports or appraisals, pest, fungus, mechanical or other inspections,
services rendered by a real estate agent or broker, and the handling of the
processing and closing or settlement.
2. The term controlled business arrangement
means an arrangement in which a real estate licensee, or an associate of a real
estate licensee, has either an affiliate relationship with or a direct or
beneficial ownership interest of more than one percent (1%) in a provider of
settlement services.
3. The term
associate means one who has one (1) or more of the following relationships with
a real estate licensee:
A. A spouse, parent or
child of a real estate licensee;
B.
A corporation or business entity that controls, is controlled by or is under
common control with a real estate licensee;
C. An employer, officer, director, partner,
franchisor or franchisee of a real estate licensee; or
D. Anyone who has an agreement, arrangement
or understanding with a real estate licensee, the purpose or substantial effect
of which is to enable the real estate licensee to refer settlement business to
benefit financially from the referrals of that business.
(B) A licensee who has a
controlled business arrangement with a provider of settlement services and who,
directly or indirectly, refers business to that provider or affirmatively
influences the selection of that provider shall disclose the arrangement to the
person whose business is referred or influenced. This disclosure shall be given
on a separate form and shall be signed by the person whose business is referred
or influenced. The disclosure shall be given and signed before or at
substantially the same time that the business is referred or the provider is
selected. The licensee shall retain a copy of the signed form. The form shall
be in at least ten (10)-point type and shall contain the following language:
DISCLOSURE OF REFERRAL OF BUSINESS
I understand that (Name of Real Estate
Licensee) has an affiliate relationship with or owns an interest in
(Name of Company to Which Business is Being Referred) and is
also recommending that I employ this company for (Type of
Service).
I realize that (Name of Real Estate
Licensee) may earn financial benefits from my use of this
company.
I understand that I am not obligated to use this company, and
may select a different company if I wish to do so.
This form has been fully explained to me.
____________________________________
(Date)
____________________________________
(Signature of Person Whose Business is Being
Referred)
The form may be modified to describe more accurately the
nature of the service, the referring entity and the entity receiving the
referral, provided that its content and meaning are not changed in
substance.
(C) A licensee,
directly or indirectly, shall not require a party to a real estate sale or
lease to use and shall not condition the performance of real estate brokerage
services on the use by a party of any particular provider of settlement
services.
(5) A licensee
shall comply in all respects with the requirements of the federal Real Estate
Settlement Procedures Act and corresponding regulations, in transactions
governed by the law and regulations.
(6) An "as is clause" written into a contract
for the sale of real estate does not relieve a licensee of the requirements of
section 339.100.2(2), RSMo.
