Fiduciary Duties
A fiduciary is a person who has a high duty of care for another person, the client. The law requires the fiduciary to place the client’s interest ahead of his or her own interest. When a license holder begins to provide agency services to a party, or a party believes that such services are being provided, the fiduciary relationship begins.
Fiduciary relationships are common and can involve attorneys, trustees, investment brokers and real estate agents, among others. The principal, or client, is the person with whom the license holder has a fiduciary relationship. Although the license holder’s duty is to act in the principal’s interest, the license holder owes a duty of honesty and fairness to all parties in the transaction.
A fiduciary is a person who has a high duty of care for another person, the client. The law requires the fiduciary to place the client’s interest ahead of his or her own interest. When a license holder begins to provide agency services to a party, or a party believes that such services are being provided, the fiduciary relationship begins.
Fiduciary relationships are common and can involve attorneys, trustees, investment brokers and real estate agents, among others. The principal, or client, is the person with whom the license holder has a fiduciary relationship. Although the license holder’s duty is to act in the principal’s interest, the license holder owes a duty of honesty and fairness to all parties in the transaction.
What is Substantive Dialogue?
A substantive dialogue is a meeting or written communication that involves a substantive discussion relating to a specific real property. A substantive dialogue does not include a dialogue at an open house or a meeting after the time of the contract. For example, a face-to-face meeting with a prospective client in which you are discussing properties is a substantive dialogue.
Any written correspondence (including email or other electronic means) about specific properties constitutes a substantive dialogue. A telephone conversation by itself might or might not constitute a meeting that would require providing the form. If a telephone conversation constitutes a substantive dialogue, a prompt delivery of the form should follow.
A substantive dialogue is a meeting or written communication that involves a substantive discussion relating to a specific real property. A substantive dialogue does not include a dialogue at an open house or a meeting after the time of the contract. For example, a face-to-face meeting with a prospective client in which you are discussing properties is a substantive dialogue.
Any written correspondence (including email or other electronic means) about specific properties constitutes a substantive dialogue. A telephone conversation by itself might or might not constitute a meeting that would require providing the form. If a telephone conversation constitutes a substantive dialogue, a prompt delivery of the form should follow.
Disclosure of Agency Representation
The Information About Brokerage Services form informs parties only to potential representation and does not disclose the license holder’s agency or representation.
A license holder representing a party is required to disclose such representation at the first contact with another party to the transaction or another license holder who represents another party to the transaction. Agency disclosure may be oral or in writing. For example, when making an appointment with a listing agent or seller to show a property, a buyer’s agent must disclose that he or she represents the buyer. Another example is when the listing agent meets a prospect at an open house or listed property.
The Information About Brokerage Services form informs parties only to potential representation and does not disclose the license holder’s agency or representation.
A license holder representing a party is required to disclose such representation at the first contact with another party to the transaction or another license holder who represents another party to the transaction. Agency disclosure may be oral or in writing. For example, when making an appointment with a listing agent or seller to show a property, a buyer’s agent must disclose that he or she represents the buyer. Another example is when the listing agent meets a prospect at an open house or listed property.
Intermediary Brokerage Relationship Services
Intermediary status was created by statute in 1996 to acknowledge that a broker could be in the position of assisting two principals involved in the same transaction.
An intermediary is a broker who is employed to negotiate a transaction between parties and acts as an agent of the parties. A broker who represents the buyer and the seller in the same transaction must act as an intermediary.
For a broker to negotiate a transaction for two principals as an intermediary, the broker first must obtain written permission from the parties to act in such capacity, and the agreement must state the source of any expected compensation.
Intermediary status was created by statute in 1996 to acknowledge that a broker could be in the position of assisting two principals involved in the same transaction.
An intermediary is a broker who is employed to negotiate a transaction between parties and acts as an agent of the parties. A broker who represents the buyer and the seller in the same transaction must act as an intermediary.
For a broker to negotiate a transaction for two principals as an intermediary, the broker first must obtain written permission from the parties to act in such capacity, and the agreement must state the source of any expected compensation.
When entering into an agreement with a principal, the agreement may address whether the intermediary relationship is a possibility. To authorize the possibility of an intermediary relationship in a listing agreement or buyer representation agreement, the statute requires that the agreement be in writing and that the following be in bold print [TRELA §1101.651]:
- intermediary may not disclose that the seller will accept a price less than the asking price, unless authorized in writing to do so by the seller,
- intermediary 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;
- intermediary may not disclose confidential information, unless authorized in writing to disclose the information or required to do so by the Texas Real Estate License Act, a court order, or if the information materially relates to the condition of the property;
- intermediary may not treat a party dishonestly; and
- intermediary may not violate the Real Estate License Act.
The intermediary may appoint different associated license holders to communicate with and carry out instructions of the respective parties. The appointment of associated license holders requires the written consent of the parties and written notification of appointments to the parties. The appointed license holders must still comply with the requirements listed above. Each appointed license holder may provide opinions and advice to his or her respective party.
The intermediary is required to treat both parties fairly and impartially. The appointed license holders are not subject to the intermediary’s duty of impartiality.
An intermediary is not required to make appointments in every transaction. There should be clear company policies regarding appointments. The issue of compensation is a matter of the brokerage’s policy and is an internal concern. If appointments are made
The intermediary is required to treat both parties fairly and impartially. The appointed license holders are not subject to the intermediary’s duty of impartiality.
An intermediary is not required to make appointments in every transaction. There should be clear company policies regarding appointments. The issue of compensation is a matter of the brokerage’s policy and is an internal concern. If appointments are made
- there must be a written authorization from both parties for the broker to act as an intermediary (this could be included in the written buyer representation agreement and the written listing agreement),
- the intermediary may not appoint himself or herself to either party,
- the intermediary cannot make appointments to one party without also making appointments to the other party,
- the intermediary must give written notice to each principal that appointments have been made and identify the respective appointees to the principals, and
- the appointees must keep confidential information confidential.
Example 1
Agent A lists a shopping center.
Agent B, working for the same company, comes in with a buyer (client).
In this example, the broker’s policy in such a situation is to appoint Associate A to the seller and Associate B to the buyer. The intermediary (broker) does not provide any opinions or advice to either party during negotiations. Each associate may provide opinions and advice during negotiations to the parties to whom each is appointed. The intermediary (broker) and the appointed associates remain obligated to comply with the items under TRELA §1101.651(d). All associates in a brokerage act in the role of an intermediary except for those associates who are appointed to the parties.
Agent A lists a shopping center.
Agent B, working for the same company, comes in with a buyer (client).
In this example, the broker’s policy in such a situation is to appoint Associate A to the seller and Associate B to the buyer. The intermediary (broker) does not provide any opinions or advice to either party during negotiations. Each associate may provide opinions and advice during negotiations to the parties to whom each is appointed. The intermediary (broker) and the appointed associates remain obligated to comply with the items under TRELA §1101.651(d). All associates in a brokerage act in the role of an intermediary except for those associates who are appointed to the parties.
If the buyer does not agree to give written consent, the broker must advise the buyer that he or she is no longer represented and that fiduciary duties are owed to the seller under the listing agreement.
I have a listing, and an unrepresented buyer wants to make an offer. Must I act as an intermediary?
No. A broker representing one party (client) to a transaction in which the other party is unrepresented (customer) is not an intermediary. One may assist the buyer and represent the seller in this example. Agents should check with their brokers about this situation as many companies have policies addressing this and other situations.
I have a listing, and an unrepresented buyer wants to make an offer. Must I act as an intermediary?
No. A broker representing one party (client) to a transaction in which the other party is unrepresented (customer) is not an intermediary. One may assist the buyer and represent the seller in this example. Agents should check with their brokers about this situation as many companies have policies addressing this and other situations.
TREC Intermediary FAQs
What is an intermediary?
An intermediary is a broker who negotiates the transaction between the parties when the broker or a sales agent sponsored by the broker has obtained consent from the parties to represent both the buyer and the seller. The broker intermediary may, with the written consent of the parties, appoint separate individual license holders associated with the broker to work with and advise the party to whom they have been appointed. [TRELA §§ 1101.558-1101.561 and §1101.651(d)]
What is an intermediary?
An intermediary is a broker who negotiates the transaction between the parties when the broker or a sales agent sponsored by the broker has obtained consent from the parties to represent both the buyer and the seller. The broker intermediary may, with the written consent of the parties, appoint separate individual license holders associated with the broker to work with and advise the party to whom they have been appointed. [TRELA §§ 1101.558-1101.561 and §1101.651(d)]
What are the steps to formation of an intermediary relationship?
Before a broker or sales agent sponsored by the broker can represent both the buyer and seller in a transaction, all of the following steps must occur:
Before a broker or sales agent sponsored by the broker can represent both the buyer and seller in a transaction, all of the following steps must occur:
- Both the buyer and seller are presented with the Information About Brokerage Services by their respective sales agent at the time of the first substantive communication;
- The seller executes a Listing Agreement or other written document with the broker that authorizes the broker to act as intermediary and specifies in conspicuous bold or underlined print the conduct that is prohibited under TRELA §1101.651(d);
- The buyer executes a Buyer Representation Agreement or other written document that authorizes the broker to act as intermediary and specifies the conduct that is prohibited under TRELA §1101.651(d) in conspicuous bold or underlined print; and
- Both the buyer and seller represented by the broker or the broker’s sales agents execute an agreement regarding notice of intermediary before the contract is negotiated.
What if a license holder does not comply with the requirements for forming an intermediary relationship?
Failure of the intermediary broker or the sponsored sales agents to comply with the Intermediary Provisions of TRELA §§ 1101.558-561 may subject them to disciplinary sanctions by TREC, including but not limited to, revocation, suspension, reprimand and/or an administrative penalty.
What is the difference if a broker appoint sales agents to represent the buyer and the seller or if the broker makes no appointments to the principals in a real estate transaction?
If the broker appoints an associated license holder to represent the seller and another associated license holder to represent the buyer, the individual agents may offer advice and opinions regarding the real estate transaction to the party each has been appointed to represent. If the broker does not appoint associated license holders to represent the buyer and seller respectively, then the broker and/or agent may not offer advice and opinions relevant to the real estate transaction to either party and must not favor one principal in the transaction over the other principal. Appointments provide the agents the opportunity to provide a higher level of service to their clients.
Failure of the intermediary broker or the sponsored sales agents to comply with the Intermediary Provisions of TRELA §§ 1101.558-561 may subject them to disciplinary sanctions by TREC, including but not limited to, revocation, suspension, reprimand and/or an administrative penalty.
What is the difference if a broker appoint sales agents to represent the buyer and the seller or if the broker makes no appointments to the principals in a real estate transaction?
If the broker appoints an associated license holder to represent the seller and another associated license holder to represent the buyer, the individual agents may offer advice and opinions regarding the real estate transaction to the party each has been appointed to represent. If the broker does not appoint associated license holders to represent the buyer and seller respectively, then the broker and/or agent may not offer advice and opinions relevant to the real estate transaction to either party and must not favor one principal in the transaction over the other principal. Appointments provide the agents the opportunity to provide a higher level of service to their clients.
May a broker act as a dual agent?
No. Texas law does not permit dual agency. A license holder may not represent both principals as a dual agent under the revisions to TRELA. Under the current law, a broker must agree to act as an intermediary in accordance with the statute if the broker agrees to represent more than one party in a transaction. [TRELA §1101.561(b)]
To the extent a dual agency relationship is created by accident or otherwise, a license holder must resolve the matter by immediate compliance with the notice and consent requirements under TRELA §§1101.558-561 and act as either an intermediary or represent only one of the principals in a transaction while working with the other principal only as a customer.
No. Texas law does not permit dual agency. A license holder may not represent both principals as a dual agent under the revisions to TRELA. Under the current law, a broker must agree to act as an intermediary in accordance with the statute if the broker agrees to represent more than one party in a transaction. [TRELA §1101.561(b)]
To the extent a dual agency relationship is created by accident or otherwise, a license holder must resolve the matter by immediate compliance with the notice and consent requirements under TRELA §§1101.558-561 and act as either an intermediary or represent only one of the principals in a transaction while working with the other principal only as a customer.
Can the intermediary delegate to another license holder the authority to appoint license holders associated with the broker intermediary?
The intermediary may delegate to another license holder the authority to appoint license holders. If the intermediary authorizes another license holder to appoint associated license holders to work with the respective principals, that license holder cannot designate himself/herself as one of the appointed license holders. This is an improper combination of the different functions of intermediary and appointed license holder. It is important to remember that there will always be a single intermediary broker even if another license holder has been authorized to make the specific appointments.
The intermediary is prohibited from acting so as to favor one principal over the other, and may not reveal confidential information obtained from one principal without the written instructions of that principal, unless disclosure is required by TRELA, court order, or the information materially relates to the condition of the property. The intermediary and any associated license holders appointed by the intermediary broker are prohibited from disclosing, without the written authorization from the seller, that the seller will accept a price less than the asking price or that the buyer will pay a price greater than the price submitted in a written offer. [TRELA § 1101.558]
The intermediary may delegate to another license holder the authority to appoint license holders. If the intermediary authorizes another license holder to appoint associated license holders to work with the respective principals, that license holder cannot designate himself/herself as one of the appointed license holders. This is an improper combination of the different functions of intermediary and appointed license holder. It is important to remember that there will always be a single intermediary broker even if another license holder has been authorized to make the specific appointments.
The intermediary is prohibited from acting so as to favor one principal over the other, and may not reveal confidential information obtained from one principal without the written instructions of that principal, unless disclosure is required by TRELA, court order, or the information materially relates to the condition of the property. The intermediary and any associated license holders appointed by the intermediary broker are prohibited from disclosing, without the written authorization from the seller, that the seller will accept a price less than the asking price or that the buyer will pay a price greater than the price submitted in a written offer. [TRELA § 1101.558]
Conflicts Arising in Early Termination of Agency Representation
The agency relationship is highly personal. It requires continuing consent of the principal and the agent. At any time, the agency relationship may be terminated by either party; however, an early termination without cause might expose the terminating party to liability under the representation agreement.
If an agent continues to offer the property for sale after termination, without the consent of the principal, it constitutes a violation of TRELA. Upon receipt of a notice of termination from a principal, the agent should cease acting as the principal’s agent. A listing agent should cease all advertising. For example, remove signs, remove MLS listing, remove information from web site, etc.
The agency relationship is highly personal. It requires continuing consent of the principal and the agent. At any time, the agency relationship may be terminated by either party; however, an early termination without cause might expose the terminating party to liability under the representation agreement.
If an agent continues to offer the property for sale after termination, without the consent of the principal, it constitutes a violation of TRELA. Upon receipt of a notice of termination from a principal, the agent should cease acting as the principal’s agent. A listing agent should cease all advertising. For example, remove signs, remove MLS listing, remove information from web site, etc.
REVIEW
