So … you saw a sign last weekend and called the agent’s number … and now he’s driving you to see a couple of houses.
Is he really your agent?
Not unless you took steps to formalize the relationship — i.e., to hire him.
Since 1996, the State of Texas has required real estate agents to discuss this
Information About Brokerage Services
with customers and clients — at the time of the first “substantive” discussion of a property:
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Information About Brokerage
Texas law requires all real estate licensees to give the following information about brokerage services to prospective buyers, tenants, sellers and landlords.
Approved by the Texas Real Estate Commission for Voluntary Use
Before working with a real estate broker, you should know that the duties of a broker depend on whom the broker represents. If you are a prospective seller or landlord (owner) or a prospective buyer or tenant (buyer), you should know that the broker who lists the property for sale or lease is the owner’s agent. A broker who acts as a subagent represents the owner in cooperation with the listing broker. A broker who acts as a buyer’s agent represents the buyer. A broker may act as an intermediary between the parties if the parties consent in writing. A broker can assist you in locating a property, preparing a contract or lease, or obtaining financing without representing you. A broker is obligated by law to treat you honestly.
IF THE BROKER REPRESENTS THE OWNER:
The broker becomes the owner’s agent by entering into an agreement with the owner, usually through a written – listing agreement, or by agreeing to act as a subagent by accepting an offer of subagency from the listing broker. A subagent may work in a different real estate office. A listing broker or subagent can assist the buyer but does not represent the buyer and must place the interests of the owner first. The buyer should not tell the owner’s agent anything the buyer would not want the owner to know because an owner’s agent must disclose to the owner any material information known to the agent.
IF THE BROKER REPRESENTS THE BUYER:
The broker becomes the buyer’s agent by entering into an agreement to represent the buyer, usually through a written buyer representation agreement. A buyer’s agent can assist the owner but does not represent the owner and must place the interests of the buyer first. The owner should not tell a buyer’s agent anything the owner would not want the buyer to know because a buyer’s agent must disclose to the buyer any material information known to the agent.
IF THE BROKER ACTS AS AN INTERMEDIARY:
A broker may act as an intermediary between the parties if the broker complies with The Texas Real Estate License Act. The broker must obtain the written consent of each party to the transaction to act as an intermediary. The written consent must state who will pay the broker and, in conspicuous bold or underlined print, set forth the broker’s obligations as an intermediary. The broker is required to treat each party honestly and fairly and to comply with The Texas Real Estate License Act. A broker who acts as an intermediary in a transaction:
(1) shall treat all parties honestly;
(2) may not disclose that the owner will accept a price less than the asking price unless authorized in writing to do so by the owner;
(3) may not disclose that the buyer will pay a price greater than the price submitted in a written offer unless authorized in writing to do so by the buyer; and
(4) may not disclose any confidential information or any information that a party specifically instructs the broker in writing not to disclose unless authorized in writing to disclose the information or required to do so by The Texas Real Estate License Act or a court order or if the information materially relates to the condition of the property.
With the parties’ consent, a broker acting as an intermediary between the parties may appoint a person who is licensed under The Texas Real Estate License Act and associated
with the broker to communicate with and carry out instructions of one party and another person who is licensed under that Act and associated with the broker to communicate with and carry out instructions of the other party.
If you choose to have a broker represent you, you should enter into a written agreement with the broker that clearly establishes the broker’s obligations and your obligations. The agreement should state how and by whom the broker will be paid. You have the right to choose the type of representation, if any, you wish to receive. Your payment of a fee to a broker does not necessarily establish that the broker represents you. If you have any questions regarding the duties and responsibilities of the broker, you should resolve those questions before proceeding.
Texas Real Estate Brokers and Salespersons are licensed and regulated by the Texas Real Estate Commission (TREC). \
If you have a question or complaint regarding a real estate licensee, you should contact TREC at P.O. Box 12188, Austin, Texas 78711-2188 or 512-465-3960.
01A TREC No. OP-K
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The short explanation is that establishing a brokerage relationship should always be done in writing — either a Listing Agreement or a Buyer Representation Agreement. Those are the only sure way to know whose interests the agent is obligated to protect. Those are the documents that change your relationship from “customer” to “client.”
Among the obligations that come with that important step:
- Obedience to your wishes;
- Loyalty to your best interests;
- Protection of you confidential information;
- Full disclosure of what you need to know in order to make
informed decisions about a specific property or neighborhood, or about relevant market conditions; and,
- Full accounting — disclosure of financial information necessary for you to make informed financial decisions.
Texas does not recognize “dual agency,” but being an “intermediary” allows a broker to serve two clients as parties in the same transaction. Taking that role requires written permission from both Seller and Buyer, and once that relationship is established the broker can no longer provide advice and counsel to either party.
If you’re not certain whether a broker represents you, proceed with caution. Ask specifically about where his or her loyalties and obligations lie, and make sure that the broker’s obligations are in writing. In addition, make sure you are personally comfortable with the broker’s agent that you’re actually working with. Your written agreement is with “ABC Realty” but your personal relationship is with “John” or “Mary Jo” real estate agent. You should be confident that he or she is truly acting as your agent.