Dual Agency Rule change effective May 1 2007
The
New Hampshire Real Estate Commission recently
approved rule changes that go into effect on May 1 2007. These changes now bring the Rules (REA) in line with the Law and as some of you know changes to the law (RSA) 331-A:25-d Disclosed Dual Agent;Duties were approved in 2005 and since that time the "Rules" really didn't make any sense.
Many agents seem to be a little confused by the difference between RSA's (Laws) and the REA's (Rules)...what is what...and which one do you listen to? Now that won't be a problem any more but to clarify I have always considered the Law (RSA's)to be like your car's
owners manual...full of advice on
what Must be done and the Rules (REA's) to be like the
operators manual...telling you
How to do what must be done. Make sense?
Our Rules will now coincide with our Law!
The biggest change is to REA 701.01 Agency and Non Agency Disclosure and Rea 404.4 Brokerage Contracts
REA 701.01 (a) A licensee shall provide a written agency relationship disclosure to the consumer at the time of first business meeting.
(b) A licensee showing a property listed with another agency shall disclose their agency or non-agency relationship verbally or in writing to the other party’s agent prior to showing the property and in the writing at time of the offer.
(c) Licensees shall use the agency/non-agency disclosure form adopted by the commission (as of this writing they are still developing the form that we all will have to use)
(f) A licensee intending to act in the capacity of a dual agent shall:
(1) At the time of first meeting with a consumer to discuss a specific property, provide a written agency relationship disclosure pursuant to Rea 701 .01(a);
(2) On the listing contract and buyer agency/tenant representation contract, give the client the option to accept or deny a dual agency statement of consent to showings, pursuant to Rea 404.04;
(3) have the informed consent to dual agency agreement signed and reviewed by the buyer/tenant and seller/landlord at the time which in the dual agency occurs but no later than the preparation of a written offer for sale or lease pursuant to Rea 404.04
Changes to Rea 404.4 Brokerage Contracts as of May 1 2007 will now require that listing agreement and buyer agency agreements have consent for dual agency showings within the agreement by separate dated signatures.
Caution...You must be sure to gain Informed written consent at time of listing for potential Dual Agency showings and then be sure to get the actual consent form signed prior to drafting an offer for sale or lease of real estate.
Best Practice...Make sure you have (1.) signed consent for showings on the listing agreement and then (2.) Contact your seller client and inform them that a dual agency showing is taking place and try to get written consent...if unable to get written consent...make sure you get it before you present or draft an offer and make sure your buyer client understands what dual agency really means.
These changes are more in line with how we actually do business in NH but if not handled correctly the agent has more rope to hang themselves with in my opinion.
Need a refresher on what dual agency in New Hampshire is check out my blog post called Dual Agency Life in the Fast Lane
The New Hampshire Association of REALTORS will be adding new forms to our True Forms (forms on line) once we get final approval from the Board of Directors that will reflect these changes.
A listing of the forms pending approval are;
The Revised Forms will include:
CONDITIONAL RELEASE FROM EXCLUSIVE LISTING AGREEMENT
CONDITIONAL RELEASE FROM EXCLUSIVE BUYER AGENCY AGREEMENT
DUAL AGENCY INFORMED CONSENT AGREEMENT
EXCLUSIVE AGENCY AGREEMENT
EXCLUSIVE BUYER AGENCY AGREEMENT
EXCLUSIVE LISTING AGREEMENT
PROPERTY DISCLOSURE – LAND
PROPERTY DISCLOSURE – RESIDENTIAL ONLY
PURCHASE AND SALES AGREEMENT AND DEPOSIT RECEIPT
Brand Spanking New Forms will be:
BUYER AGENCY DISCLOSURE
SELLERS SUITABLE HOUSING ADDENDUM TO PURCHASE AND SALES AGREEMENT AND DEPOSIT RECEIPT
I'm sure we'll all have a bit of a learning curve to go through but these forms will make it easier for all of us.
Jay and Monika McGillicuddy
Prudential Verani Realty
Hampstead NH
603-548-7728
Jay and Monika McGillicuddy, covering southern NH and the Seacoast area. If you’re thinking of selling or buying a southern NH or Seacoast area home give us a call…we’d love to help make your home ownership dreams come true.
E-mail Jay and Monika or call or text at 603-548-7728
Jay and Monika McGillicuddy, NH REALTORS
Prudential Verani Realty
603-944-9172 direct line
603-926-3648 office
28 Comments on Dual Agency Alive and Well in New Hampshire
Monika - my head hurts!!!
In my opinion, and it's just mine based on selling real estate in Maine as well as New Hampshire, I really REALLY wish we'd get our act together in NH and put Appointed Agency or Designated Agency in place. It is SO much cleaner for all parties to have Appointed Agents. I use that all the time in Maine, and being in an office the size of mine, I can tell you it makes life so much easier in Maine, as we have probably 3/4 of us licensed in both states.
Great post!
Ann
Sounds like the powers in NH have been talking with the powers in MD.
Very similar. Very easy to work with and about 10% compliance.
Lenn
Ann...My head hurts too!! There is a task force looking into your wishes :) maybe things will change.
Lenn...About 10% compliance? Wow!!!
I hope things will change, for the better, Monika. And I hope they do a better job this time around of explaining it to our members, and I truly hope we don't get submarined by a few of our own members in front of the Legislature like last time, too.
Ann
I'd expect a battle Ann. I do think if it all happens that it will be for the better. I can't wait...meantime we deal with these changes the best we can.
Monika,
Wow- Great job with this one! I think dual agency is dangerous business and wish they would rule it out here in Oregon. What an asset you are to the state of NH : )
Just curious, is true forms your online contracts? Is zipforms available in your area? I thought every agent used winforms or zipforms online contracts. Who publishes true forms and how is the support? again, just curious.
Just curious, is true forms your online contracts? Is zipforms available in your area? I thought every agent used winforms or zipforms online contracts. Who publishes true forms and how is the support? again, just curious.
Nice summary of the new rules, especially given the issues of dual agency. Sounds much like what we had in MA when I was working there 2 years ago. I second (third?) what has been said about your teaching blog.
Jeff
Dual agency is alive and well in Hawaii. It is also the number reason for complaints filed. We were told last year by the board of Realtors, that it will soon be passed by agent providing multiple services as the number one complaint.
Wow, thanks for the heads up on the new changes, Monika. We had heard 'something' was changing May 1 but nobody seemed to know the details!
Actually, I've never found that Dual Agency is such a problem in this area. What IS a problem is the regular occurance of UNDISCLOSED Dual Agency, which is FRAUD.
Also, the problem with the Dual Agency forms is that the buyers sign them without knowing what it means. Uninformed consent is not consent.
The real problem in this entire agency matter is the dearth of understanding on the part of the public about the meaning of the word so loosely tossed around of "representation".
Christy...Thank you for stopping by and commenting.
Brad...True forms is our online contracts provided by our state assocition and is part of our membership benefits. I use them all the time and the support has been great. We are going through some major revisions due to law changes. The company that publishes them is called Reveal.
Thank you Jeff...New Rules are always hard an dual agency confusing no matter what. Thank you so much for the compliments Jeff :)
Randy...Our commission also has a lot of DDA complaints come in. Hot topic dual agency is and probably always will be.
Michelle...Thank so much for commenting. One thing to keep in mind is that we will have to use the disclosure form provided by the commission and only that form. They don't have ta form approved yet...hopefully we'll have it by May 1.
Lenn...UNDISCLOSED Dual Agency is a major issue! I think agents have a hard time explaining it to begin with and then consumers don't understand it...a vicious circle!!! Lots of truley uninformed consent happening.
Dual Agency is alive and well in MICHIGAN>< too. In my firm, we get through the agency disclosures before we start looking at homes. The goal is to meet the client at the office on thre first occassion. We go over agency, terms of sale and other prequalifying events. Not much of a problem here.
We explain upfront that if the buyer happens to buy a company listing, he will have choices. 1. We will represent the seller. Here the buyer has a right to another agent should he chose to get one. (Note: This has never happened to anyone in my firm.) 2. We will be a disclosed dual agent at the buyer's choice. The sellers 9 out 10 ten times will accept Disclosed Dual Agency. we actually have some buyers that don't care as long as we apromise to be fair and truthful.
Anyway you look at it, Disclosed Dual Agency CAN be a WIN WIN for anyone that follows the rules