Fiduciary in Real Estate - Duties of a Real Estate Agent

This post describes the intricacies of Fiduciary.  I’ve tried to make the language as user friendly and to the point, as possible.  Bear with it and tell me what you think…md

 

Duties of a Real Estate Agent

         A real estate broker who becomes an agent of a seller or buyer is deemed to be a fiduciary. Other examples of fiduciaries are trustees, executors, and guardians.

 

         As a fiduciary, a real estate broker is held by law to owe specific duties to the person who they are representing. These specific fiduciary duties include: 

 

         Loyalty

         Obedience

         Disclosure

         Confidentiality

         Reasonable care and diligence

         Accounting

Loyalty

        One of the most fundamental fiduciary duties an agent owes to the principal. The duty obligates a real estate broker to act at all times, solely in the best interests of the principal, excluding all other interests, including that of the broker. 

         An example of breach of loyalty is when a broker purchases a property listed with his/her firm, and immediately resells it at a profit. Such conduct is usually considered appropriate and lawful by persons who act at arms length, but a fiduciary would be considered to have stolen an opportunity for profit that rightfully belongs to the principal.

Obedience

         An agent is obligated to promptly and efficiently obey all lawful instructions of his/her principal that conform to the purpose of the agency relationship. However, the duty does not include an obligation to obey unlawful instructions, such as instructions to not market a property to minorities or to misrepresent the condition of a property.

Disclosure

        An agent must disclose to the principal all known relevant and material information that pertains to the scope of the agency. The duty includes any facts affecting the value or desirability of the property, as well as any other relevant information pertaining to the transaction, such as the other party’s bargaining position, the identity of all potential purchasers, information concerning the ability or willingness of the buyer to offer a higher price, or in the case of being a buyers agent, information concerning the ability or willingness of the seller to accept a lower price..

         An agent’s duty of disclosure to his/her principal must not be confused with a real estate broker’s duty to disclose any known material facts about the property value to non-principals. The duty to disclose known material facts is based on a real estate broker’s duty to treat all persons honestly. The duty of honesty does not depend on the existence of an agency relationship.

Confidentiality

        An agent is obligated to safeguard his/her principal’s lawful confidences and secrets. Therefore, a real estate broker must keep confidential any information that may weaken a principal’s bargaining position. The duty of confidentiality precludes a broker who represents a seller from disclosing to a buyer that the seller can, or must, sell a property below the listed price. Conversely, a broker who represents a buyer is prohibited from disclosing to a seller that the buyer can, or will, pay more than what has been offered for a property.  The duty of confidentiality does not include an obligation by a broker who represents a seller to withhold known material facts about the condition of the seller’s property from the buyer, or to misrepresent the property’s condition. To do so, constitutes misrepresentation and imposes liability on both the broker and the seller.

Reasonable care and diligence

        An agent is obligated to use reasonable care and diligence when pursuing the principal’s affairs. The standard of care expected of a buyer’s or seller’s real estate broker is that of a competent real estate professional. By reason of his/her license, a broker is considered to have skill and expertise in real estate matters superior to that of the average person. 

         As an agent who represents others in their real estate dealings, a broker or salesperson is under a duty to use superior skill and knowledge while pursuing the principal’s affairs. However, no broker is expected to perform tasks or know information outside the scope of his/her real estate license. Real estate licensees are not expected to perform services normally provided by engineers, lawyers, accountants, or other professionals. If concerns arise outside the scope of a broker’s responsibility, the broker should acknowledge that and suggest that the principal seek assistance from a reliable outside source.

 

Accounting

         An agent is obligated to account for all money or property that belongs to his/her principal entrusted to that agent. The duty compels a real estate broker to safeguard any money, deeds, or other documents entrusted to them relative to their client’s transactions of affairs.  

 

DON’T YOU WANT TO BE RESPRESENTED AS A BUYER IN A REAL ESTATE TRANSACTION? 

 

 

 

 

 

 

 

 

 

Serving The Hamptons, Shelter Island and the North Fork

631 725 0554 (o)  631 525 6000 (m)  www.beachamptons.com

michael.daly@mfdaly.com 

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