A Consumer's Guide to
Engaging the Services of
a Licensed Real Estate Agent
in New Brunswick
YOUR RIGHTS AS A
CONSUMER OF REAL ESTATE SERVICES
Real Estate Agents do not sell a product, they sell a service and it's better for both buyers and sellers to close a transaction knowing that they have not made significant decisions alone.
Whether you're a buyer or seller, you have the right to the advice, assistance, and loyalty of your own Agent in the real estate transaction, if you so choose. You should never assume that an Agent is acting on your behalf unless you have made the necessary arrangements for the Agent to be your Agent.
When buyers engage their own Agent, the Agent is obligated to obtain the property at the lowest price and best terms possible. When sellers engage their own Agent, the Agent is obligated to obtain the property at the highest price and best terms possible.
It is your right to make all the business decisions including, especially, the terms upon which you engage an Agent directly or indirectly and precisely how, or even whether, you authorize your Agent to use a Multiple Listing Service®. For examples, you might choose not to offer unilateral sub-agency or you may choose to vary the commission offered to a dual-agent.
Property finders/facilitators introduce prospective sellers and buyers who will communicate, negotiate, and contract directly. Property finders/facilitators are not licensed nor are they Agents; so they owe no loyalty to either party. They may solicit payment from both parties and they cannot be relied upon for any advice or assistance in negotiations.
Single Agents
(Buyer's/Seller's Agents) represent the buyer or seller in a fiduciary capacity. They will either represent buyers or sellers, but never both in the same transaction. Sub-Agents are Agents of the Agent employed to act for the Principal.
Dual-agents can legally represent both the Seller and the Buyer in a transaction, but only with the knowledge and informed consent of both the Seller and the Buyer. There will be conflicts in the duties of loyalty, obedience, disclosure and confidentiality. Disclosure of confidential information may be made only with written authorization. This does not relieve the Agent of the obligation to disclose all know facts which materially and adversely affect the consideration to be paid by any party.
AGENT - FIDUCIARY
When acting as your Agent, real estate Agents (and their
salespersons) owe the following fiduciary duties to you, the Principal:
- Undivided Loyalty
- which prohibits your Agent from advancing any interests adverse to yours or conducting your business to benefit him/herself or others.
- Obedience - which requires your Agent to act subject to your continuous control by not exceeding the scope
of authority conferred by you and by obtaining and following your lawful instructions.
- Competence and Reasonable Care -
which requires your Agent to: a) protect you from foreseeable risks of harm; b) exercise such care, skill, and competence necessary to ensure the transaction of your business to your best advantage; and c) recommend that
you obtain expert advise or assistance when your needs are outside the scope of your Agent’s expertise.
- Confidentiality - which prohibits your Agent from using or communicating information confidentially given to or acquired by him/her within the scope of employment as your Agent.
- Full Disclosure - which requires your agent to disclose affirmatively all information concerning the transaction of your business which might affect your best interest including, especially, information about any existing or proposed interests which might be adverse to yours. To be adequate, such disclosure must clearly and completely disclose all the facts including their real effect on your interests and it must occur early enough for you to be able
to use the information provided to take steps to protect your own interests.
- Accountability - which requires your Agent to promptly report to you all money and property received and
paid out and, upon request, to render an accounting and return all money and property lawfully belonging to you.
THE SPECIAL VALUE OF
FIDUCIARY LOYALTY
When real estate Agents (and their salespersons) act as your
Agent, they must:
* Put your best interests before all others including their own. It is this undivided loyalty that represents the extra value that an Agent's services have to consumers over the services of non-fiduciaries, like dual-agents, who owe no undivided loyalty.
* Not represent interests, adverse to you, in the same transaction in which they agreed to act as your Agent because of the inherent conflict in the obligations owed to the two parties. For example, a Single Agent must not represent the seller and the buyer or the landlord and the tenant in the same transaction. If your Agent is disloyal, (s)he could be required to forfeit compensation unless (s)he can prove that you freely gave your Informed Consent to such disloyalty. For your consent to be informed, your Agent must show that (s)he made Full Disclosure of the entire truth, including its real effect on your best interests, in words that plainly explain the risks and detriments of consenting to any proposal that basically asks you to waive your right to your Agent's undivided loyalty.
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