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#161604 - 08/08/07 09:19 PM Agency Disclosure
livinitup Offline
Member

Registered: 08/08/07
Posts: 16
Loc: California
In California, when working as an exclusive buyer's agent, when should the Agency Disclosure form be signed buy the buyer and sent to the seller? We have an offer in, but this form was not requested.

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#161748 - 08/09/07 10:55 AM Re: Agency Disclosure [Re: livinitup]
Jim Erickson Offline
Veteran Member

Registered: 03/31/04
Posts: 513
Loc: Twin Cities, MN
Cannot answer to California requirements but in Minnesota, Agency Disclosure is made at the first substantial contact with the consumer. Substantial contact would be prior to discussing price, terms, motivation with consumer. The consumer reads the disclosure and signs it. This disclosure is placed in the file. Commerce department will randomly check broker transaction files specifically looking for this disclosure. Fines apply if there are found to be none.

Generally, this disclosure is not submitted with offers.

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#161967 - 08/10/07 04:32 AM Re: Agency Disclosure [Re: Jim Erickson]
livinitup Offline
Member

Registered: 08/08/07
Posts: 16
Loc: California
Thanks

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#192182 - 01/09/08 09:12 PM Re: Agency Disclosure [Re: livinitup]
cori Offline
Member

Registered: 01/29/06
Posts: 46
Loc: Auburn, Ca
I would ask the buyer to sign it right away, that way they can't come back at you and say they didn't understand what the relationship was. When you submit the offer its not necessary for the seller to have the agency disclosure untill the offer is accepted.
_________________________
Corinne Shepard-Realtor
Keller Williams Realty
11601 Blocker Dr. Suite 200
Auburn, Ca 95603

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#196722 - 01/24/08 05:47 PM Re: Agency Disclosure [Re: cori]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
In California, can an agent have a buyer agency (agent/fiduciary) relationship with just a verbal agreement, or does it have to be in writing?

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#196863 - 01/24/08 10:29 PM Re: Agency Disclosure [Re: Pikes Peak]
Devil's Advocate Offline
Veteran Member

Registered: 01/03/05
Posts: 538
Loc: Ontario, Canada
LOCALLY The requirement is to make written disclosure at the earliest practicable opportunity utilizing your best efforts to obtain written acknowledgement of the disclosure and before any offer is made.

Interestingly, if my memory serves correctly, it was in the early 80's THAT the common law of agency in relation to the real estate industry was brought to the fore in a successful California lawsuit by a buyer against a real estate agent for the breach of his fiduciary duty to his principal, which the agent denied arguing that he was not the agent of the buyer, but that as the co-operating broker in the transaction, he was the subagent of the listing broker and seller, but the court found that under the common law of agency, the fiduciary relationship and the agents duty thereunder, was clearly establish between the buyer and the agent through implication.

So, it is accepted by the courts that if you act like someone's agent and talk or behave like their agent, you are their agent in the eyes of the court, UNLESS the relationship is clearly documented to the contrary.

Important Notice: This information is provided as basic educational information by the author and is not a substitute for the advice of an expert and/or the advice of a lawyer. There is NO representation as to legality, accuracy, correctness of the herein information and the reader is strongly urged to consult a lawyer in the relevant jurisdiction to ensure accuracy before acting on this information .

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#196990 - 01/25/08 11:53 AM Re: Agency Disclosure [Re: Devil's Advocate]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
The reason for asking:

http://www.nytimes.com/2008/01/22/business/22agent.html?pagewanted=1&hp

"The Ummel case poses the question: In a relationship built on trust, where promises are rarely written down and where as in this case there is no signed contract, what are the exact obligations of these representatives in guiding their clients through a sizzling market?"

In my state there is no such thing as "implied agency", it has to be in writing.
I think Oregon has implied agency.

FYI, interesting cases:
http://www.frascona.com/resource/jag802rutrans.htm

http://www.frascona.com/resource/oef701buyer.htm


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#197355 - 01/26/08 06:07 PM Re: Agency Disclosure [Re: Pikes Peak]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
Any California agents know the answer to my question?

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#197372 - 01/26/08 07:35 PM Re: Agency Disclosure [Re: Pikes Peak]
BayAreaTexan Offline
Member

Registered: 01/01/08
Posts: 106
Loc: SFBayArea, CA
My friend you should review your CAR forms and speak with your broker. The answer to your question regarding agency is this, as a licensee you must have any person you have a meaningful conversation with regarding real estate sign an agency document. Use a reasonable man standard to define meaningful. If you're at a Laker game an the guy drinking a brew next to you talks about buying the REO three doors down from him you don't need to have him complete an agency doc. If he shows up at your office or invites to his home to walk down the street you should have him sign the form.

With regard to submitting an offer, your client should have signed an agency disclosure doc, that document is sent along with the purchase offer signed by your client. If you were presenting the offer in person you'd prepare an agency document for the seller to sign as well.

This is NOT optional, do it if you remember stuff. This is all codified in the California Civil Code 2079.13 to 2079.24. Which means non-compliance gets your licensed yanked and you successfully sued by your former client or the seller or both.


Edited by BayAreaTexan (01/26/08 11:18 PM)

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#197406 - 01/26/08 09:45 PM Re: Agency Disclosure [Re: BayAreaTexan]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
So, what you are saying is, that the laws in California as to buyer Agency are the same as in Colorado (where I am). Without a SIGNED agency agreement, there is NO agency?

The women suing the agent in California doesn't have a leg to stand on because there is no BA contract?

http://www.nytimes.com/2008/01/22/business/22agent.html?pagewanted=1&hp

p.s. I'm not into brews and laker games, a link to the CA agency laws will be appreciated.

Never mind, looks like you are not required to have a separate buyer agency contract, just some type of disclosure form stating who you work for. Here is our BA contract, making it quite clear who pays us and who we work for, including our fiduciary obligations and responsibilities.

http://www.dora.state.co.us/Real-estate/contracts/BC60040705CLN.pdf

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#197443 - 01/26/08 11:23 PM Re: Agency Disclosure [Re: Pikes Peak]
BayAreaTexan Offline
Member

Registered: 01/01/08
Posts: 106
Loc: SFBayArea, CA
Pike the original question came from a Cali licensee. That licensee has specific requirements to keep his license and avoid prosecution of claims against himself and his brokerage.

If I read your comments correctly I really wouldnt know how to respond. In real estate what isn't in writing won't bear probative scrutiny at trial. You have to figure that memories will fade or become selective so you memorialize the agreement for the benefit of all parties.

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#197445 - 01/26/08 11:31 PM Re: Agency Disclosure [Re: BayAreaTexan]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
Reading this (link below), does NOT require a written Buyer Agency Contract to be able to represent a buyer, which in my location is illegal. Your requirement, if I read it correctly, only requires a disclosure form.

http://caselaw.lp.findlaw.com/cacodes/civ/2079-2079.24.html

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#197492 - 01/27/08 10:04 AM Re: Agency Disclosure [Re: Pikes Peak]
BayAreaTexan Offline
Member

Registered: 01/01/08
Posts: 106
Loc: SFBayArea, CA
In California a licensee is not required to have a written agreement to represent a buyer. Best practices dictate if you want to be paid for your time during this period where gasoline prices are approaching $4 a gallon you'd have the person sign a buyer broker agreement mandating that he pay you for your services. Otherwise what's to stop that person from riding around in your range rover for a month then buying from their cousin who has a license but not much else?

Hope this adds just a bit of clarity to how our laws are different from what you see every day in Colorado Pike.

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#197510 - 01/27/08 11:37 AM Re: Agency Disclosure [Re: BayAreaTexan]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
"Hope this adds just a bit of clarity to how our laws are different from what you see every day in Colorado Pike.


Thanks, it does.
Looks to me, like you guys operate a little loosy goosy with buyer agency. So, the lady with the lawsuit, probably does have a leg to stand on and might win, given the agent had a fiduciary duty to her, although it was not in writing.

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#197627 - 01/28/08 12:03 AM Re: Agency Disclosure [Re: Pikes Peak]
BayAreaTexan Offline
Member

Registered: 01/01/08
Posts: 106
Loc: SFBayArea, CA
Pike, I don't know that the buyer broker agreement promulgated by the California Association of REALTORS has been successfully challenged at trial. I've had more than a few conversations with CAR attorneys and while most aren't trial litigators they would have mentioned the fact that the buyer broker contract being used has had successful challenges.

I'm also unfamiliar with the ongoing litigation you're referring to. Is it California litigation?

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