REAL ESTATE AGENCY IN CONNECTICUT

1. REAL ESTATE AGENCYIN CONNECTICUT A Three Hour Continuing Education Module September 2002

2. Credits • The Connecticut Real Estate Commission has made Agency a mandatory course for the continuing education cycle ending in 2004. • This module was developed by Katherine A. Pancak, Associate Professor in Residence of Finance and Real Estate at the University of Connecticut, with funding from the Center for Real Estate and Urban Economic Studies, University of Connecticut. • Special thanks are extended to the following individuals for the valuable contributions, insights and assistance: • Adorna Carroll, Owner and Instructor, Dynamic Directions, Inc. • Laurence L. Hannafin, Hannafin Consulting • Donna Hohider, Vice-Chairperson, Connecticut Real Estate Commission • Ted Mansfield, Administrator, New Haven Real Estate School • Eugene A. Marconi, General Counsel, Connecticut Association of Realtors, Inc. • Laureen Rubino, Real Estate Examiner, CT Department of Consumer Protection • Teresa Sirico, Teresa Sirico Realtor LLC • Fred Southwell ABRM, CRB, GRI, Southwell Education Agency CE Course - 2002

3. Course Reference Materials • Connecticut Real Estate Commission Policy on Agency, Adopted 1.6.00 • C.G.S. Section 20-325d – Disclosure of Representation • C.G.S. Section 20-325f – Broker Subagency, Written Consent Required • C.G.S. Section 20-325g – Dual Agency Consent Agreement • Connecticut Regulations Concerning Designated Agency • Connecticut Regulations Section 20-328-9a – Interfering With Agency Relationships Agency CE Course - 2002

4. Course Overview • Agency Pretest • General Agency Theory • Critical Agency Issues • Agency in Practice • Agency Pretest Revisited Agency CE Course - 2002

5. Agency Pretest True or False • An Agency Disclosure Notice is given to an unrepresented buyer or seller. • An agent can not work with a prospective buyer unless the buyer signs a buyer agency agreement. • In order to represent a buyer, a buyer agency agreement must be signed before a property is shown to the buyer. • Sub-agency is illegal in Connecticut. • A dual agent is required to act in the best interests of both the seller and the buyer. • Dual agency consent can be obtained at the time an agency agreement is signed. • A designated agent only represents one party and is not a dual agent. • A brokerage firm representing two buyers interested in the same property is not a dual agent. Agency CE Course - 2002

6. GENERAL AGENCY THEORY

7. Agency • Agent - Person who represents the interests of another person (called the principal) when dealing with third parties. • CT real estate agency: the office broker is the agent. Additionally, all salespersons/brokers who work for that office broker are also agents of the principal. • Dual Agent - An agent that represents both the buyer and the seller in the same transaction. • CT real estate agency: if the office broker is a dual agent, all salespersons/brokers who work for that office broker are also dual agents. • C.G.S. Section 20-325g – Dual Agency Consent Agreement Agency CE Course - 2002

8. Agency, continued • Designated Agent – A dual agent that has been designated to only represent one party. • CT real estate agency: a dual agent office broker may designate one salesperson/broker to represent the buyer and one to represent the seller (given the informed consent of buyer and seller) • Connecticut Regulations Concerning Designated Agency • Subagent – A person authorized to assist an agent to act on the principal’s behalf. • CT real estate agency: a cooperating broker can only act as a subagent of a seller if the seller consents to the subagency. • C.G.S. Section 20-325f – Broker Subagency Agency CE Course - 2002

9. Agency in Real Estate • Broker and Salespeople • Client • Customer Agency created by written agreement No written agreement, no agency Agency CE Course - 2002

10. Agency Scope • Property type • Residential • Commercial • Transaction • Purchase and Sale • Leasing • Note – the course examples will be limited to residential purchase and sale transactions, however all agency concepts also apply to commercial transactions and leasing transactions. Agency CE Course - 2002

11. Duties of Agent to Client • FIDUCIARY • Loyalty • Obedience • Reasonable Skill and Care • Accounting • Disclosure • Confidentiality • The agent must act for the benefit of the principal/client in all matters connected with the agency Agency CE Course - 2002

12. Duties of Agent to Customer • Non-fiduciary • Honesty • No misrepresentation • Disclosure of material property facts • Accounting (for escrow monies) Agency CE Course - 2002

13. Client v. Customer • CLIENT • Agent must put client’s interests above her/his own. • Agent must follow lawful instruction of client. • Agent must negotiate for best terms and conditions for client. • Conversations and information between agent and client must remain confidential. • CUSTOMER • Agent can assist but not advocate for customer. • Conversations and information between agent and customer not confidential (may have a duty to disclose to client). Agency CE Course - 2002

14. CRITICAL AGENCY ISSUES

15. Determining Relationship • Consumer enters into written agency agreement • Client relationship • Consumer declines to enter into written agency agreement • Customer Relationship • Disclose non-agency by providing Real Estate Agency Disclosure Notice Given to Unrepresented Parties • Can only show in-house listings as seller’s agent (need subagency consent to show another firm’s listings to a customer). Agency CE Course - 2002

16. What happens…? • Buyer has approached Agent about viewing properties. Buyer is hesitant about entering into a buyer agency agreement “at this early stage”. Agency CE Course - 2002

17. …Result Agent should • Ask whether Buyer is currently being represented by another firm. • Explain Agent’s firm’s office policy on various agency, dual agency, designated agency, and customer relationships that Agent could potentially have with Buyer. • Specifically tell Buyer not to provide confidential information unless and until Buyer and Agent have entered into an agency relationship. • IT IS NOT THE LAW THAT A BUYER MUST SIGN A BUYER AGENCY AGREEMENT – Agent can work with Buyer as a customer. Agency CE Course - 2002

18. …Result, continued Working with Buyer as Customer • Agent represents Seller • Must provide Buyer with Real Estate Agency Disclosure Notice Given to Unrepresented Parties (see C.G.S. Section 20-325d – Disclosure of Representation) • Can only show in-house listings • Can give Buyer information on Property, Agent’s firm, mortgage rate and lending institutions • Agent cannot • Ask Buyer to disclose confidential information • Show property listed with another firm Agency CE Course - 2002

19. Timing ofBuyer Agency Agreement • Written agency agreement must be signed before a licensee negotiates on behalf of buyer or seller. • Connecticut Regulations Section 20-328(a)(1) and (2) • “Negotiate” means • Asking a consumer to disclose confidential information • Physically showing another firm’s listing • Discussing an offer on another firm’s listing • Connecticut Real Estate Commission Policy on Agency, Adopted 1.6.00, Section 5 Agency CE Course - 2002

20. What happens…? • Buyer calls Agent and asks that Agent meet him at a property listed with another firm. Agency CE Course - 2002

21. …Result Agent should • Ask whether Buyer is currently being represented by another firm. • Explain Agent’s firm’s agency policies. • Explain that in order to show another firm’s listing, a Buyer Agency Agreement must be entered into. • Arrange for a meeting where Agent can explain Buyer Agency more fully to Buyer. • Note that Agent could show Buyer an in-house in the capacity of the seller’s representative, after having provided Buyer with the Real Estate Agency Disclosure Notice Given to Unrepresented Parties. Agency CE Course - 2002

22. Written Agency Agreement • Types • Agreement must accurately explain compensation arrangements. Agency CE Course - 2002

23. What happens…? • Buyer is interested in entering into a buyer agency agreement, but is unwilling to accept any financial responsibility. Agency CE Course - 2002

24. …Result • Written buyer agency agreement must specifically and accurately explain compensation arrangement. • Buyer has no obligation to pay a fee under any circumstances. • Buyer has obligation to pay a fee only if Seller or Seller’s agent does not compensate Agent. • Buyer has obligation to pay a fee. Agency CE Course - 2002

25. Possibility of dual representation should be addressed up front In listing agreement with seller clients In buyer agency agreement with buyer clients Actual consent can not be obtained until both clients identified Dual Agency Designated Agency If one client does not consent, can not represent both. Handling the Possibility ofDual Representation Agency CE Course - 2002

26. What happens…? • Firm policy allows representation of both buyers and sellers, so that a dual agency conflict may arise. At the time of her buyer agency consultation with Firm, Agent notifies Buyer of this possibility. Buyer asks Agent “what will happen if I am interested in making an offer on one of your in-house listings?” Agency CE Course - 2002

27. …Result • Agent should explain how Firm handles dual agency. • “If you are interested in making an offer on an in-house listing, our firm would be a dual agent. The firm would inform you of this situation before you write up the offer.” • “With your and the seller’s written consent, we could proceed in one of two ways. First the firm and all of its agents could act as dual agents representing both you and the seller. As a dual agent, the firm would have certain prohibitions against disclosure of confidential information about you to the seller and vice versa. Second, the firm could assign a designated agent within the firm to represent you, and another agent to represent the seller. While the firm would still be considered a dual agent, your designated agent would owe full loyalty to you.” • “If either you or the seller do not agree to either of these options, the firm would have to terminate our agency agreement with one of you.” Agency CE Course - 2002

28. Dual Agency:Representing Buyer and Seller Firm MUST • Obtain written consent for DUAL AGENCY OR • Obtain written consent for DESIGNATED AGENCY OR • DECLINE REPRESENTATION of one of the clients (option should have been provided for in agency representation agreement) Agency CE Course - 2002

29. Dual Agency:Acting as a Dual Agent • Both clients MUSTgive their written informed consent • Fiduciary to both clients • still owe all fiduciary duties • Additional confidentiality requirements - can not disclose • unless client gives express written consent to disclosure • personal or confidential information about one client to the other • motivation of either client • that seller would accept less than listing price • that buyer would pay more than offer price • that either client would agree to financing terms other than those offered • still must disclose info required by law, such as about material property defects Agency CE Course - 2002

30. What happens…? • Buyer has entered into buyer agency agreement with Firm and is now interested in making an offer on one of Firm’s in-house listings. Buyer and Seller signed Dual Agency Consent Agreement at the time they entered into their respective agency agreements. Agency CE Course - 2002

31. …Result • Before Buyer writes an offer, Firm must disclose conflict with Buyer. • Before Seller is presented with an offer, Firm must disclose conflict with Seller. • In order to proceed as dual agent, Firm must obtain informed consent from both Buyer and Seller. • Informed consent can be obtained using state Dual Agency Consent Agreement. • If Firm proceeds as dual agent… review confidentiality requirements previous and next slides. Agency CE Course - 2002

32. …Result, continued • Dual Agency Consent Agreement defines dual agent’s additional duties. • Dual agent cannot disclose • Confidential information about one client to the other. • Unless required by law (material defects) or authorized by client whose information is disclosed. • This includes • to Buyer that Seller will accept less than the asking price • to Seller that Buyer will pay more than price submitted in written offer • motivations for selling/buying Agency CE Course - 2002

33. Dual Agency:Acting as a Designated Agent • Firm policy determines whether this option will be offered to clients. • Only allowed if both parties give their written consent – obtained using Dual Agency/Designated Agency Disclosure Notice and Consent Agreement. • Firm appoints one agent to represent Buyer and one agent to represent Seller. • Brokerage firm still considered dual agent • Designated agent not deemed dual agent. • Owes fiduciary duties • Can use confidential info about other party obtained after appointment Agency CE Course - 2002

34. What happens…? • Buyer has entered into buyer agency agreement with Firm and is now interested in making an offer on one of Firm’s in-house listings. Buyer has agreed in writing to designated agency. Seller will not agree to any type of designated or dual agency. Agency CE Course - 2002

35. …Result • Firm can not proceed as a designated agent if both Buyer and Seller do not agree in writing. • Firm can not assign a designated agent for just one of the parties. • Firm must terminate either Seller or Buyer’s agency agreement (can refer to another firm), and proceed only representing one of the parties. Agency CE Course - 2002

36. Representing Competing Clients:Buyer v. Buyer / Seller v. Seller • Not dual agency. • Must provide notice in agency agreement that firm may represent competitors. • Listing Agreement – notice that firm may represent other sellers competing for buyers • Buyer Agency Agreement – notice that firm may represent other buyers competing for same property Agency CE Course - 2002

37. What happens…? • Firm represents Buyer 1 and Buyer 2, who are both interested in making an offer on the same property. Can Firm proceed in representing both of these competitors? Agency CE Course - 2002

38. …Result • Buyer 1 and Buyer 2 have competing interests. • This is not the same as dual agency, where clients have adverse interests (e.g. buyer v. seller), so dual agency consent is not required. • Firm can represent both clients, as long as they were both notified that Firm has the right to represent competing interests. • Firm should advise both Buyers to make their best offer, and inform that that seller will make ultimate decision. Agency CE Course - 2002

39. Confidential Information • Cannot reveal confidential information about a client at any time before or after an agency relationship. • Can’t use info about past clients to that person’s disadvantage or to the advantage of another • Confidential info = facts concerning person’s • Assets, liabilities, income, expenses • Motivations to purchase, rent or sell • Previous offers received or made that are not a matter of public record • Not confidential • Matters of public record or common knowledge Agency CE Course - 2002

40. What happens…? • Agent’s listing agreement with Seller has terminated. When Agent represented Seller, Seller stated that he would accept $10,000 less than property’s listing price. Seller has now listed property with another firm. Agent now represents Buyer who is interested in Seller’s property. Agency CE Course - 2002

41. …Result • Agent can not disclose to Buyer that Seller will accept less than the listing price of the property. Agency CE Course - 2002

42. Interfering withAgency Relationships • A licensee can not interfere with the agency relationship of another licensee. • Connecticut Regulations Section 20-328-9a • Interfering includes • Encouraging a person to break an exclusive agency agreement with another firm. • Advising a person on how to break an exclusive agency agreement with another firm. Agency CE Course - 2002

43. What happens…? • Buyer approaches Agent about a property. Buyer states that she has previously signed a buyer agency agreement with another firm, but now wants to work with Agent. Agency CE Course - 2002

44. …Result • Agent can not encourage or advise Buyer to break buyer agency agreement with other firm. • Penalty – loss of license, fine • Agent can only suggest that Buyer talk to other firm or to Buyer’s attorney if she wishes to terminate an agency relationship. Agency CE Course - 2002

45. AGENCY IN PRACTICE Case Studies

46. Agency in PracticeCase Study 1 Alex, a salesperson with Right Realty, is hosting an open house at property listed with Right Realty. Does Alex need to notify potential buyers that he and Right Realty represent the seller? How should Alex proceed with a potential buyer that wants to discuss the house? Agency CE Course - 2002

47. Case Study 1 Discussion Points • Agency disclosure at an open house can be made through a sign, poster, or pamphlet. • Prior to any discussion concerning a buyer’s specific real estate needs, Alex should ask buyer whether he/she has signed an agency agreement with a real estate firm. • If yes, the buyer is represented. • No further agency disclosure is needed. • Alex should refer buyers to their agent for discussion/questions on the property. • If buyer is not represented • written disclosure must be made using the Real Estate Agency Disclosure Notice Given to Unrepresented Parties (indicating that Right Realty represents seller), OR • Alex can discuss entering into a written buyer agency agreement (in which case Right Realty represents buyer; also seller as to this house). Agency CE Course - 2002

48. Agency in PracticeCase Study 2 Barb and Bob Breyer set up a meeting with Alex to discuss a house that they saw in the paper listed with Right Realty. The Breyers state that they may also be interested in other houses in that neighborhood too, and have a lead on a for-sale-by owner property. How should Alex proceed at this meeting with the Breyers? Agency CE Course - 2002

49. Case Study 2 Discussion Points • Prior to any discussion concerning the Breyers’ specific real estate needs, Alex should ask buyer whether they have signed an agency agreement with another real estate firm. • If yes, Alex should refer Breyers to their agent for discussion/questions on the properties they are interested in. • If the Breyers are not currently represented by another firm, Alex should discuss representation options. • Alex can work with the Breyers as CUSTOMERS. • No agency agreement. • Alex represents sellers of in-house listings; can only show in-house listings. • Real Estate Agency Disclosure Notice Given to Unrepresented Parties • Alex can work with the Breyers as CLIENTS. • Written agency agreement required. • Alex represents Breyers; can show in- and out- of house listings. Agency CE Course - 2002

50. Agency in PracticeCase Study 3 • Barb and Bob Breyer entered into a buyer agency agreement with Right Realty. After looking at many properties, they tell Alex that they would like to make an offer on a house. The house the Breyers are interested in is listed with Right Realty. Agency CE Course - 2002