In New Jersey, real estate licensees are required
to disclose how they intend to work with buyers and sellers in a real
estate transaction. (In rental transactions,
the terms "buyers" and "sellers" should be read as "tenants" and "landlords,"
respectively.)
AS A SELLER'S AGENT OR SUB-AGENT, I, AS A LICENSEE,
REPRESENT THE SELLER AND ALL
MATERIAL INFORMATION SUPPLIED TO ME BY THE
BUYER WILL BE TOLD TO THE SELLER.
AS A BUYER'S AGENT, I, AS A LICENSEE, REPRESENT
THE BUYER AND ALL MATERIAL
INFORMATION SUPPLIED TO ME BY THE SELLER WILL
BE TOLD TO THE BUYER.
AS A DISCLOSED DUAL AGENT, I, AS A LICENSEE,
REPRESENT BOTH PARTIES. HOWEVER, I
MAY NOT, WITHOUT EXPRESS PERMISSION, DISCLOSE
THAT THE SELLER WILL ACCEPT A PRICE
LESS THAN THE LISTING PRICE OR THAT THE BUYER
WILL PAY A GREATER THAN THE
OFFERED PRICE.
AS A TRANSACTION BROKER, I, AS A LICENSEE,
DO NOT REPRESENT EITHER THE BUYER OR
THE SELLER. ALL INFORMATION I ACQUIRE FROM
ONE PARTY MAY BE TOLD TO THE OTHER
PARTY.
Before you disclose confidential information
to a real estate licensee regarding a real estate transaction, you should
understand what type of business relationship
you have with that licensee.
There are four types of business relationships:
(1)SELLER's AGENT; (2)BUYER's AGENT; (3)DISCLOSED
DUAL AGENT; and (4)TRANSACTION BROKER. Each
of these relationships imposes certain legal duties
and responsibilities on the licensee as well
as on the seller or buyer represented. These four relationships are defined
in greater detail below. Please read carefully
before making your choice.
SELLER'S AGENT
A seller's agent WORKS ONLY FOR THE SELLER
and has legal obligations, called fiduciary duties, to the
seller. These include reasonable care, undivided
loyalty, confidentiality and full disclosure. Seller's agents often work
with buyers, but do not represent the buyers.
However, in working with buyers a seller's agent must act honestly. In
dealing with both parties, a seller's agent
may not make any misrepresentations to either party on matters material
to
the transaction, such as the buyer's financial
ability to pay, and must disclose defects of a material nature affecting
the physical condition of the property which
a reasonable inspection by the licensee would disclose.
Seller's agents include all persons licensed
with the brokerage firm which has been authorized through a listing
agreement to work as the seller's agent. In
addition, other brokerage firms may accept an offer to work with the
listing broker's firm as the seller's agents.
In such cases, those firms and all persons licensed with such firms, are
called "sub-agents". Sellers who do not desire
to have their property marketed through sub-agents should so inform
the seller's agent.
BUYER'S AGENT
A buyer's agent WORKS ONLY FOR THE BUYER. A
buyer's agent has fiduciary duties to the buyer which
include reasonable care, undivided loyalty,
confidentiality and full disclosure. However, in dealing with sellers a
buyer's agent must act honestly. In dealing
with both parties, a buyer's agent may not make any misrepresentations
on matters material to the transaction, such
as the buyer's financial ability to pay, and must disclose defects of a
material nature affecting the physical condition
of the property which a reasonable inspection by the licensee would
disclose.
A buyer wishing to be represented by a buyer's
agent is advised to enter into a separate written buyer agency
contract with the brokerage firm which is
to work as their agent.
DISCLOSED DUAL AGENT
A disclosed dual agent WORKS FOR BOTH THE BUYER
AND THE SELLER. To work as a dual agent, a
firm must first obtain the informed written
consent of the buyer and the seller. Therefore, before acting as a disclosed
dual agent, brokerage firms must make written
disclosure to both parties. Disclosed dual agency is most likely to
occur when a licensee with a real estate firm
working as a buyer's agent shows the buyer properties owned by
sellers for whom that firm is also working
as a seller's agent or subagent.
A real estate licensee working as a disclosed
dual agent must carefully explain to each party that, in addition to
working as their agent, their firm will also
work as the agent for the other party. They must also explain what effect
their working as a disclosed dual agent will
have on the fiduciary duties their firm owes to the buyer and to the seller.
When working as a disclosed dual agent, a
brokerage firm must have the express permission of a party prior to
disclosing confidential information to the
other party. Such information includes the highest price a buyer can afford
to pay and the lowest price a seller will
accept and the parties' motivation to buy or sell. Remember, a brokerage
firm
acting as a disclosed dual agent will not
be able to put one party's interests ahead of those of the other party
and
cannot advise or counsel either party on how
to gain an advantage at the expense of the other party on the basis of
confidential information obtained from or
about the other party.
If you decide to enter into an agency relationship
with a firm which is to work as a disclosed dual agent, you are
advised to sign a written agreement with that
firm.
TRANSACTION BROKER
The New Jersey Real Estate Licensing Law does
not require licensees to work in the capacity of an "agent" when
providing brokerage services. A transaction
broker works with a buyer or a seller or both in the sales transaction
without representing anyone. A TRANSACTION
BROKER DOES NOT PROMOTE THE INTERESTS OF
ONE PARTY OVER THOSE OF THE OTHER PARTY TO
THE TRANSACTION. Licensees with such a
firm would be required to treat all parties
honestly and to act in a competent manner, but they would not be required
to keep confidential any information. A transaction
broker can locate qualified buyers for a seller or suitable
properties for a buyer. They can then work
with both parties in an effort to arrive at an agreement on the sale or
rental of real estate and perform tasks to
facilitate the closing of a transaction. A transaction broker primarily
serves
as a manager of the transaction, communicating
information between the parties to assist them in arriving at a
mutually acceptable agreement and in closing
the transaction, but cannot advise or counsel either party on how to
gain an advantage at the expense of the other
party. Owners considering working with transaction brokers are
advised to sign a written agreement with that
firm which clearly states what services that firm will perform and how
it will be paid. In addition, any transaction
brokerage agreement with a seller or landlord should specifically state
whether a notice on the property to be rented
or sold will or will not be circulated in any or all Multiple Listing
System(s) of which that firm is a member.
YOU MAY OBTAIN LEGAL ADVICE ABOUT THESE BUSINESS
RELATIONSHIPS FROM YOUR OWN
LAWYER.
THIS STATEMENT IS NOT A CONTRACT AND IS PROVIDED
FOR INFORMATIONAL PURPOSES
ONLY.
THE NEW JERSEY REAL ESTATE COMMISSION
CN 328
TRENTON, NJ 08625-0328
ANITA B. KARTALOPOULOS, ESQ.
EXECUTIVE DIRECTOR