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An unlicensed assistant at a housing subdivision greets visitors, and then unlocks model homes for the visitors. Is the unlicensed assistant permitted to unlock model homes for the visitors to the housing subdivision?

ANSWER:

No. The Arizona Department of Real Estate in Substantive Policy Statement number 2004.05 illustrates permissible and prohibited acts of unlicensed assistants. One of the prohibited acts is “Hold/host an open house without an agent being present.” The policy reason for this prohibition is that prospective buyers at this time frequently will request information about the home from the unlicensed assistant, and the unlicensed assistant is prohibited from furnishing this information. The unlocking of a model home is conceptually no different than holding an open house, so the same policy reason applies. Therefore, the unlicensed assistant is prohibited from unlocking model homes for prospective buyers.

Quick Quiz

Fill in the Blank:
Therefore, the assistant is prohibited from unlocking model homes for prospective .

Is the Real Estate Agency Disclosure and Election form a required form in a real estate transaction?

Answer:

No.

A real estate agent should discuss agency issues with their client at the beginning of the representation and confirm his/her representation in writing before any contracts are executed.  The AAR Real Estate Agency Disclosure and Election (“READE”) form is designed to help agents explain agency issues to their sellers, buyers, landlords, and tenants and to provide those discussions in written form.  The READE may be required by the agent’s broker.  However, the use of the READE form is not required by law.

The seller has instructed the listing broker not to present any offers to purchase the home unless the offer is more than $350,000. The buyer’s broker has presented an offer for $320,000, and the listing broker has informed the buyer’s broker that this $320,000 offer will not be presented to the seller. Does the listing broker have to present the $320,000 offer? If not, does the buyer’s broker have the right to see the seller’s written instruction?

ANSWER:

The listing broker is required to present all offers to the seller unless otherwise instructed by the seller. See A.A.C. R4-28-802(B). There is no requirement, however, that the listing broker presents any such written instruction from the seller to the buyer’s broker.

Quick Quiz

Fill in the Blank:
The broker is required to present all offers to the seller unless otherwise instructed by the .

An agent transferred his license to a new brokerage firm. The agent provides property management services, but does not execute the AAR Real Estate Agency Disclosure and Election form (the “READE form”) between himself and the landlord. The agent’s new broker would like the agent to execute the READE form when the agent executes the Property Management Agreement form with the landlord. Should the READE form be used when entering into a Property Management Agreement?

ANSWER:

The READE form states: “Before a Seller or Landlord (hereinafter referred to as “Seller”) or a Buyer or Tenant (hereinafter referred to as “Buyer”) enters into a discussion with a real estate broker or licensee affiliated with a broker, the Seller, and the Buyer should understand what type of agency relationship or representation they will have with the broker in the transaction.” (emphasis added).

A real estate agent is obligated to discuss agency issues with their client at the beginning of the representation and confirm his/her representation in writing before any contracts are executed.

The AAR READE form is designed to help agents explain agency issues to their sellers, buyers, landlords, and tenants and to provide those discussions in written form. Inasmuch as the agent’s broker has requested that the agent use the READE form, the agent should comply with the broker’s request.

Broker A had a property listed two years ago. The sellers ultimately decided not to sell at that time, and the listing expired. Two years later, the property is for sale with Broker B. Broker A has a buyer that is interested in making an offer on the property. Broker A knows that the Mrs. Seller is ill and this might be helpful in negotiations for his buyer. However, the knowledge was obtained while Broker A had the property listed for sale two years ago. Can Broker A disclose the information to the buyer?

ANSWER:                

No.  

 After termination of an agency relationship, the fiduciary duty is ended. See Coldwell Banker Commercial v. Camelback Office Park, 156 Ariz. 226, 231, 751 P.2d 542, 547 (1988). However, pursuant to the Restatement (Second) of Agency: 1 §396 Using Confidential Information after Termination of Agency:

Unless otherwise agreed, after the termination of the agency, the agent:

  • (d) has a duty to the principal not to take advantage of a still subsisting confidential relation created during the prior agency relationship.

Therefore, Broker A’s continuing duty of confidentiality to the seller after the listing expired would preclude him from disclosing the confidential information about Mrs. Seller even after termination of the agency relationship, unless Broker A obtains Mrs. Seller’s consent.

Quick Quiz

Fill in the Blank:
The Agent has a duty to the not to take advantage of a still subsisting confidential relation created during the prior agency .