http://www.realestatenewsline.com/

Carver Communications - Index

Carver Communications - June152009 - Index

Vol.XXVII, No.12 © Carver Communications, Inc. June 15, 2009
This Form Will Help Keep You Out Of Trouble
By D’Ann Harper,
Coldwell Banker D’Ann
Harper Realtors
Several years ago, legislation
was passed that gives authority to
TREC to define rules and regulations
that govern different types of
Brokerage Models (discount fee
Broker, flat fee – MLS only brokerage,
etc.) Please know that all of
these Brokerage Models are perfectly
acceptable – both legally and ethically.
Remember that innovative
business models still fall under the
same antitrust laws and regulations
as traditional brokerages. There are
certain rules/requirements that a
Listing Agent must adhere to regardless
of their business model. In all
cases REPRESENTATION must be
provided if a listing
agreement is executed.
Many times
Buyer’s Agents are
still dealing directly
with Sellers of
P.O. Box 33862
San Antonio, Texas 78265
the property – even though communication
is going through the listing
Broker, the Seller has given permission
to be dealt with directly. This
can create greater risk and liability
for the Cooperative Agent and their
firm if the line is crossed in trying to
assist the Seller. Much of this
is innocently done in order to keep a
transaction together; however, there
is liability for the cooperative
agent/firm if the agency/fiduciary
duty line is crossed.
If I am a Buyer’s Agent
involved in this type of transaction
– what can I do to maintain a
smooth transaction but not cross
the line? The answer is, Use TAR
form #1504: Notice from Buyer’s
Agent to Seller. TAR form #1504
The Buyer’s Agent is not allowed to
provide several items such as “opinions or
advice, assistance in evaluating any offer;
information related to any contractual
duty you may have”, etc.
PRSRT STD
U.S. Postage
PAID
San Antonio, Texas
Paid Permit #1957
clearly spells out exactly what the
Buyer’s Agent can and can not do if
they are in the situation where they
have been advised by the Listing
Broker to present their Buyer’s offer
directly to the Seller. This does not
take any responsibility away from
the Listing Agent. They still have
obligations to the Seller and rules
that must be followed in accordance
with TREC. Paragraph “E” on TAR
form #1504 states “Texas Real Estate
Commission rules provide that a
Broker is obligated under a listing
agreement to negotiate the best possible
transaction for the principal
(Seller).” This means the Buyer’s
Agent does not negotiate with the
Seller. The Buyer’s Agent
should only deliver the
offer. The Buyer’s Agent
is not allowed to provide
several items such as
“opinions or advice, assistance
in evaluating any
offer; information related
to any contractual duty
you may have”, etc.
One of the most
important statements on
this Notice is “I encourage
you to contact your Broker
or your attorney for assistance.”
Please remember
this is a notice. It does
not require the Seller’s
signature. You are only
required to notify the
Seller of what you can and
cannot do for them since
you do not represent them.
When you are
involved in a transaction
such as this, please remember to be
patient and courteous with the
Seller………Sellers, as consumers,
may truly be more informed today
than ever before. However, as The
Real Estate License Act has become
more disciplined, probably the consumers
have never been more confused.
Assume your role. Notice
the word is assume, not presume.
Don’t assume the seller understands
Buyer Agency………present TAR
form #1504 before you enter into any
dialogue. Assumptions are inappropriate
and dangerous in most situations.