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I received an email from my local association indicating that there is a revised disclosure form. This is not unusual, as forms are often revised for various reasons. Often times, new forms or revisions to existing forms are often made when there are changes to real estate laws and practice thereof; or when issues arise in specific practice areas (either because of a significant lawsuit or someone received too many complaints). This time, however, the Maryland Real Estate Commission (MREC) most likely updated and clarified the agency relationship form “Understanding Whom Real Estate Agents Represent” because of complaints of agents’ behaviors (regarding their agency relationship) while conducting open houses.

The purpose of these “agency” forms are to protect consumers as well as inform of an agent’s and broker’s duty to their client. I’m not an attorney, however, I believe that the agency disclosure also provides the agent a reminder of their duty. To be fair, many brokers and agents understand their duties and their commitment to their clients. However, there are some that do not; and unfortunately, I cannot say that they know who they are.

An “agency relationship” is defined by COMAR (Title 17 – Real Estate Brokers) §17-528 as a “relationship in which a licensee acts for or represents another person with the person’s authority in a residential real estate transaction.” Further, §17-530 states; “A licensee who participates in a residential real estate transaction as a seller’s agent, buyer’s agent, or as a cooperating agent shall disclose in writing that the licensee represents the seller or lessor or the buyer or lessee.”

It appears that there are reports of agents who conduct open houses for the purpose of steering buyers their way by making disparaging remarks about the home, as well as exhibiting other subtle behaviors that may be construed as inappropriate. An explanatory letter from the MREC describes such behaviors and clarifies how agents should conduct themselves during an open house. Besides reports of agents sitting with their laptops at the ready to show buyers other homes; according to the letter, some agents have openly admitted that their goal was to recruit home buyers while sitting an open house for a listing agent. According to the MREC, this can be a violation of the agent’s duty of loyalty to the seller; “any agent affiliated with the listing broker who holds an open house is there exclusively as the seller’s agent.”

To further clarify the agency relationship, the revised “Understand Whom Agents Represent” form states “If you are viewing a property listed by the company with whom the agent accompanying you is affiliated, and you have not signed a ‘Consent for Dual Agency’ form, that agent is representing the seller.” To attempt to circumvent this issue, some agents have had their seller clients sign a waiver of agency for open houses. However, the MREC makes it clear that an “agency waiver” is prohibited under Maryland law.

The MREC states that although it is improper to solicit a buyer while sitting in an open house, it is acceptable for agents who conducted the open house for a listing agent to contact those unrepresented home buyers another time and place. The MREC website (www.dllr.state.md.us/license/mrec) provides additional consumer real estate related information, including agency relationships.

By Dan Krell
Copyright © 2011

Comments are welcome. This article is not intended to provide nor should it be relied upon for legal and financial advice. Using this article without permission is a violation of copyright laws.

When people buy and sell real estate, they entrust professionals they hire with some of their most sensitive information, at times when they are most vulnerable, with the expectation that the professional act in their best interest. The Maryland Real Estate Commission’s form, “Understanding Whom Real Estate Agents Represent,” reminds consumers that the ultimate responsibility of protecting their interests falls on their shoulders. Although the form itself is used to assist consumers in understanding the duties and loyalties of real estate agents in various forms of agency relationships (e.g., a listing agent’s “duty of loyalty” is to the home seller, a buyer’s agent is expected to negotiate “in the best interests of the [home] buyer,” etc.); the paragraph on page two gives consumers the reminder that to protect their interests, they should read all documents carefully and to seek legal advice from an attorney and financial advice from an accountant.

The consumer reminder might be taken as somewhat of a warning that real estate can sometimes be a dirty business. It is true that most real estate practitioners operate within the law and ethical guidelines, however some do not. It is reasonable to think that recent economic conditions purged the industry of bad elements, think again. Some actions are egregious and are clearly intended to defraud the public; while other actions may appear to be innocuous, but could be construed as deceitful business practices.

Blatant scams are devised every day to appear to be legitimate but have the intention of exploiting the public; recent examples include the rise of foreclosure relief scams across the country. Unfortunately, some of these cons are not always obvious until law enforcement catches up to the perpetrators. Take for example the recent indictment of a Towson, MD title company president who allegedly did not send payoffs to existing mortgage and lien holders and allegedly transferred the funds for his personal use (www.justice.gov/usao/md/Public-Affairs/press_releases/press10a.htm).

Even business tactics that seem harmless, but can have detrimental effects, are sometimes used by real estate agents. One example is overvaluing a home by estate agents just to get a listing. This occurs with the intention to later “convince” the seller to lower the price (the effects of purposefully over pricing a home in a downward market can cost the home seller money). Another example is akin to a “bait and switch:” this agent advertises a fictitious home at such a low price it gets home buyers to call him. When I called on behalf of my client to view the advertised home, the agent told me that the advertisement is for informational purposes only.

Before you hire a real estate professional (including real estate agents) it is always a good idea to check out their licensing credentials, as you can sometimes run across someone who is not licensed; Maryland licensing agencies allow consumers to check a professional’s license status online. Many consumer advocates recommend that before you hire a professional you should interview several and ask for recent client references.

Who are you trusting with your real estate transaction and what are they telling you? The old saying that “if it sounds too good to be true, it probably is” may be true, but it is ultimately up to you to decide. Remember that the ultimate responsibility to protect your interests falls on your shoulders.

This article is not intended to provide nor should it be relied upon for legal and financial advice. This article was originally published in the Montgomery County Sentinel the week of July 5, 2010. Using this article without permission is a violation of copyright laws. Copyright © 2010 Dan Krell.

Category: ethics

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