TYPES OF AGENCY RELATIONSHIPS
PLEASE NOTE: The following is a copy of the agency relationship disclosure that licensed real estate agents in North Dakota and Minnesota must present to all buyers and sellers. Disclosures are informational only. They are not a contract. A buyer or seller can sign disclosures presented by more than one agent (in fact, every agent you meet with or who shows you a home should present you with a copy of this disclosure, as required by law). Your signature on the form provides proof to state real estate auditors that an agent has given this information to you, as required by law. To have representation by an agent, you must sign a separate buyer agency contract as a buyer or sign a listing contract as a seller. Agents can also provide equal duties and confidentiality to both buyer and seller under dual agency, when both parties agree to dual agency in writing.
The different types of agency can be confusing. I will be glad to answer questions that you may have about the types of agency relationship available. Below is a copy of the agency disclosure information required by ND and MN, which will be given to you by agents:
AGENCY RELATIONSHIPS IN REAL ESTATE TRANSACTIONS
North Dakota and Minnesota law requires that early in a relationship (at first substantive contact), real estate brokers or salespersons discuss with consumers what type of agency representation or relationship they desire. The available options are listed below. This is not a contract. This is an agency disclosure form only. If you desire representation, you must have a written contract according to state law: a listing contract if you are a seller or a buyer representation contract if you are a buyer. Until such time you choose to enter into a written contract for representation. you will be treated as a customer in North Dakota and will not receive any representation from the broker or salesperson. In Minnesota the broker or salesperson will be acting as a Facilitator unless the broker or salesperson is representing another party. (see paragraph VI below).
Acknowledgement: I/We acknowledge that I/We have been presented with the below-described options. I/We understand that until I/We have signed a representation contract I/We have no representation by the broker or salesperson and information given to the broker or salesperson may be disclosed unless the broker or salesperson is acting as a facilitator in Minnesota. I/We understand that a written consent is required for a dual agency relationship in both states and for Appointed Agency in North Dakota.
THIS IS A DISCLOSURE ONLY, NOT A CONTRACT FOR REPRESENTATION.
I. Seller's Broker: A broker who lists a property, or a salesperson who is licensed to the listing broker, represents the Seller and acts on behalf of the Seller. A Seller's broker owes to the Seller the fiduciary duties described below (see footnote # 2 below). The broker must also disclose to the Buyer material facts as defined by respective state law of which the broker is aware that could adversely and significantly affect the Buyer's use or enjoyment of the property. If a broker or salesperson working with a Buyer as a customer is representing the Seller. he/she must act in the Seller's best interest and must tell the Seller any information disclosed to him/her, except confidential information acquired in a facilitator relationship (see Paragraph VI below). In that case, the Buyer will not be represented and will not receive advice and counsel from the broker or salesperson.
II. Subagent: A broker or salesperson who is working with a Buyer but represents the Seller. In this case, the Buyer is the broker's customer and is not represented by that broker. If a broker or salesperson working with a Buyer as a customer is representing the Seller, he/she must act in the Seller's best interest and must tell the Seller any information that is disclosed to him/her. In that case, the Buyer will not be represented and will not receive advice and counsel from the broker or salesperson.
III. Buyer's Broker: A Buyer may enter into an agreement for the broker or salesperson to represent and act on behalf of the Buyer. The broker may represent the Buyer only, and not the Seller, even if he/she is being paid in whole or in part by the Seller. A Buyer's broker owes to the Buyer the fiduciary duties described below (see footnote # 2 below). The broker must disclose to the Buyer material facts as defined by respective state law of which the broker is aware that could adversely and significantly affect the Buyer's use or enjoyment of the property. If the broker or salesperson working with a Seller as a customer is representing the Buyer, he/she must act in the Buyer's best interest and must tell the Buyer any information disclosed to him/her, except confidential information acquired in a facilitator relationship (see paragraph VI below). In that case, the Seller will not be represented and will not receive advice and counsel from the broker or salesperson.
IV. Dual Agency - Broker Representing Both Seller and Buyer: Dual agency occurs when one broker or salesperson represents both parties to a transaction, or when two salespersons licensed to the same broker each represent a party to the transaction. Dual agency requires the informed consent of all parties, and means that the broker or salesperson owe the same duties to the Seller and the Buyer. This role limits the level of representation the broker and salespersons can provide, and prohibits them from acting exclusively for either party. In a dual agency, confidential information about price, terms, and motivation for pursuing a transaction will be kept confidential unless one party instructs the broker or salesperson in writing to disclose specific information about him or her. Other information will be shared. Dual agents may not advocate for one party to the detriment of the other (see #3 below).
Within the limitations described above, dual agents owe to both Seller and Buyer the fiduciary duties described below (see #2 below). Dual agents must disclose to Buyers any material facts of which the broker is aware that could adversely and significantly affect the Buyer's use or enjoyment of the property.
NORTH DAKOTA ONLY (Appointed Agency)V. Appointed Agency:
In North Dakota only, a broker has the option of replacing Dual Agency as described under paragraph IV above with APPOINTED AGENCY for in-house transactions. The broker may appoint one licensee affiliated with the broker to exclusively represent a Seller, and one licensee affiliated with the broker to exclusively represent the Buyer. In that case, no dual agency is created. NOTICE: Any appointed agent who singularly represent both the Seller and the Buyer in the same transactions is considered to be a disclosed dual agent owing fiduciary duties to both parties, and must get permission from both parties to so act.
VI. Facilitator: A broker or salesperson who performs services for a Buyer, a Seller, or both, but does not represent either in a fiduciary capacity as a Buyer's Broker, Seller's Broker, or Dual Agent. THE FACILITATOR BROKER OR SALESPERSON DOES NOT OWE ANY PARTY THE FIDUCIARY DUTIES LISTED BELOW, EXCEPT CONFIDENTIALITY, UNLESS THOSE DUTIES ARE INCLUDED IN A WRITTEN FACILITATOR SERVICES AGREEMENT. The facilitator broker or salesperson owes the duty of confidentiality to the party but owes no other duty to the party except those duties required by law or contained in a written facilitator services agreement, if any. In the event a facilitator broker or salesperson, working with a Buyer, shows a property listed by the facilitator broker or salesperson, then the facilitator broker or salesperson must act as a Seller's Broker (see Paragraph I. above). In the event a facilitator broker or salesperson, working with a Seller accepts a showing of the property by a Buyer being represented by the facilitator broker or salesperson, then the facilitator broker or salesperson must act as a Buyer's Broker (see Paragraph III. above).
(1) This disclosure is required by law in any transaction involving property occupied or intended to be occupied by one to four families as their residence.
(2) The fiduciary duties mentioned above are listed below and have the following meanings: Loyalty - broker/salesperson will act only in client(s)' best interest.
Obedience - broker/salesperson will carry out all client(s)' lawful instructions.
Disclosure - broker/salesperson will disclose to client(s) all material facts of which the broker/salesperson has knowledge which might reasonably affect the client's use and enjoyment. Confidentiality - broker/salesperson will keep client(s)' confidences unless required by law to disclose specific information (such as disclosure of material facts to Buyers).
Reasonable Care - broker/salesperson will use reasonable care in performing duties as an agent.
Accounting - broker/salesperson will account to client(s) for all client(s)' money and property received as agent.
(3) If Seller(s) decide not to agree to Dual Agency relationship, or an Appointed Agency relationship in NO, Seller(s) may give up the opportunity to sell the property to Buyers represented by the broker/salesperson. If Buyer(s) decide not to agree to a Dual Agency relationship, or an Appointed Agency relationship in NO, Buyer(s) may give up the opportunity to buy the property of Sellers represented by the broker/salesperson.
(Fargo-Moorhead Area Association of REALTORS® agency disclosure, version 4/07)