When you enter into a discussion with a real estate agent regarding
a real estate transaction, you should-from the outset understand
what type of
agency relationship or representation you wish to have with the
agent in the transaction.
SELLER'S AGENT
A Seller's agent under a listing agreement with Seller acts as
the agent for the Seller only. A Seller's agent or a subagent
of that agent has the
following affirmative obligations:
To the Seller:
(a) A Fiduciary duty of utmost care, integrity, honesty, and loyalty
in dealings with the Seller. To the Buyer & the Seller:
(a) Diligent exercise of reasonable skill and care in performance
of the agent's duties.
(b) A duty of honest and fair dealing and good faith.
(c) A duty to disclose all facts known to the agent materially
affecting the value or desirability of property that are not known
to, or within the
diligent attention and observation of the parties.
An agent is not obligated to reveal to either party any confidential
information obtained from the other party which does not involve
the affirmative duties set forth above.
BUYER'S AGENT
A selling agent can, with a Buyer's consent, agree to act as agent
for the Buyer only. In these situations, the agent is not the
Seller's agent,
even if by agreement the agent may receive compensation for services
rendered, either in full or in part from the Seller. An agent
acting only for the Buyer has the following affirmative obligations:
To the Buyer:
(a) A fiduciary duty of utmost care, integrity, honesty and loyalty
in dealings with the Buyer.
To the Buyer & Seller:
(a) Diligent exercise of reasonable skill and care in performance
of the agent's duties.
(b) A duty of honest and fair dealing and good faith.
(c) A duty to disclose all facts known to the agent materially
affecting the value or desirability of the property that am are
not known to, or within thediligent attention and observation
of. the parties.
An agent is not obligated to reveal to either party any confidential
information obtained from the other party which does not involve
the
affirmative duties set forth above.
AGENT REPRESENTING BOTH SELLER & BUYER
A real estate agent either acting directly or through one or more
associate licensees, can legally be the agent of both the Seller
and the Buyer in a transaction, but only with the knowledge and
consent of both the Seller and the Buyer.
In a dual agency situation; the agent has the following affirmative
obligations to both the Seller and the Buyer:
(a) A fiduciary duty of utmost care, integrity, honesty and loyalty
in the dealings with either the Seller or the Buyer.
(b) Other duties to the Seller and the Buyer as stated above in
their respective sections.
In representing both Seller and Buyer, the agent may not, without the express permission of the respective party, disclose to the other party that theSeller will accept a price less than the listing price or that the Buyer will pay a price greater than the price offered.
The above duties of the agent in a real estate transaction do not relieve a Seller or a Buyer from the responsibility to protect their own interests. You should carefully read all agreements to assure that they adequately express your understanding of the transaction. A real estate agent is a person qualified to advise about real estate. If legal or tax advice is desired; consult a competent professional.
Throughout your real property transaction you may receive more
than one disclosure form, depending upon the number of agents
assisting in the
transaction. The law requires each agent with whom you have more
than a casual relationship to present you with this disclosure
form. You
should read its contents each time it is presented to you, considering
the relationship between you and the real estate agent in your
specific transaction.
This disclosure form includes the provisions of Sections 2079.13
to 2079.24, inclusive, of the Civil Code set forth on the reverse
hereof. Read it
carefully.
I/WE ACKNOWLEDGE RECEIPT OF A COPY OF THIS DISCLOSURE.
BUYER/SELLER _________________________________ Date.
____________
BUYER/SELLER _________________________________ Data.
____________
BROKER __________________________ Date ___________
CHAPTER 2 TITLE 9 OF PART 4 OF DIVISION 3 OF THE COVIL CODE
2079.13. As used in Sections 2079.14 to 2079.24, inclusive, the
following terms have the following meanings:
(a) "Agent" means a person acting under provisions of
Title 9
(commencing with
Section 2295) in a real property transaction, and includes a person
who is
licensed as a real estate broker under Chapter 3 (commencing with
Section
10130) of Part 1 of Division 4 of the Business and Professions
Code, and under
whose license a listing is executed or an offer to purchase is
obtained. (b)
"Associate licensee" means a person who is licensed
as a real estate broker or
salesperson under Chapter 3 (commencing with Section 10130) of
Part 1 of
Division 4 of the Business and Professions Code and who is either
licensed
under a broker or has entered into a written contract with a broker
to act as
the broker's agent in connection with acts requiring a real estate
license and
to function under the broker's supervision in the capacity of
an associate
licensee. The agent in the real property transaction bears responsibility
for
his or her associate licensees who perform as agents of the agent.
When an
associate licensee owes a duty to any principal, or to any buyer
or seller who
is not a principal, in a real property transaction, that duty
is equivalent to
the duty owed to that party by the broker for whom the associate
licensee
functions. (c) "Buyer" means a transferee in a real
property transaction, and
includes a person who executes an offer to purchase real property
from a
seller through an agent, or who seeks the services of an agent
in more than a
casual, transitory, or preliminary manner, with the object of
entering into a
real property transaction. "Buyer" includes vendee
or lessee. (d) "Dual
agent" means an agent acting, either directly or through
an associate
licensee, as agent for both the seller and the buyer in a real
property
transaction. (e) "Listing agreement" means a contract
between an owner of real
property and an agent, by which the agent has been authorized
to sell the real
property or to find or obtain a buyer. (f) "Listing agent"
means a person who
has obtained a listing of real property to act as an agent for
compensation.
(g) "Listing price" is the amount expressed in dollars
specified in the
listing for which the seller is willing to sell the real property
through the
listing agent. (h) "Offering price" is the amount expressed
in dollars
specified in an offer to purchase for which the buyer is willing
to buy the
real property. (i) "Offer to purchase" means a written
contract executed by a
buyer acting through a selling agent which becomes the contract
for the sale
of the real property upon acceptance by the seller. (j) "Real
property" means
any estate specified by subdivision (1) or (2) of Section 761
in property
which constitutes or is improved with one to four dwelling units,
any
leasehold in this type of property exceeding one year's duration,
and
mobilehomes, when offered for sale or sold through an agent pursuant
to the
authority contained in Section 10131.6 of the Business and Professions
Code.
(k) "Real property transaction" means a transaction
for the sale of real
property in which an agent is employed by one or more of the principals
to act
in that transaction, and includes a listing or an offer to purchase.
(l)
"Sell," "sale," or "sold" refers
to a transaction for the transfer of real
property from the seller to the buyer, and includes exchanges
of real property
between the seller and buyer, transactions for the creation of
a real property
sales contract within the meaning of Section 2985, and transactions
for the
creation of a leasehold exceeding one year's duration. (m) "Seller"
means the
transferor in a real property transaction, and includes an owner
who lists
real property with an agent, whether or not a transfer results,
or who
receives an offer to purchase real property of which he or she
is the owner
from an agent on behalf of another. "Seller" includes
both a vendor and a
lessor. (n) "Selling agent" means a listing agent who
acts alone, or an agent
who acts in cooperation with a listing agent, and who sells or
finds and
obtains a buyer for the real property, or an agent who locates
property for a
buyer or who finds a buyer for a property for which no listing
exists and
presents an offer to purchase to the seller. (o) "Subagent"
means a person to
whom an agent delegates agency
powers as provided in Article 5 (commencing with Section 2349)
of Chapter 1 of
Title 9. However, "subagent" does not include an associate
licensee who is
acting under the supervision of an agent in a real property transaction.
2079.14. Listing agents and selling agents shall provide the
seller and buyer
in a real property transaction with a copy of the disclosure form
specified in
Section 2079.16, and, except as provided in subdivision (c), shall
obtain a
signed acknowledgment of receipt from that seller or buyer, except
as provided
in this section or Section 2079.15, as follows: (a) The listing
agent, if any,
shall provide the disclosure form to the seller prior to entering
into the
listing agreement. (b) The selling agent shall provide the disclosure
form to
the seller as soon as practicable prior to presenting the seller
with an offer
to purchase, unless the selling agent previously provided the
seller with a
copy of the disclosure form pursuant to subdivision (a). (c)
Where the
selling agent does not deal on a face-to-face basis with the seller,
the
disclosure form prepared by the selling agent may be furnished
to the seller
(and acknowledgment of receipt obtained for the selling agent
from the seller)
by the listing agent, or the selling agent may deliver the disclosure
form by
certified mail addressed to the seller at his or her last known
address, in
which case no signed acknowledgment of receipt is required. (d)
The selling
agent shall provide the disclosure form to the buyer as soon as
practicable
prior to execution of the buyer's offer to purchase, except that
if the offer
to purchase is not prepared by the selling agent, the selling
agent shall
present the disclosure form to the buyer not later than the next
business day
after the selling agent receives the offer to purchase from the
buyer.
2079.15. In any circumstance in which the seller or buyer
refuses to
sign an acknowledgment of receipt pursuant to Section 2079.14,
the agent, or an
associate licensee acting for an agent, shall set forth, sign,
and date a written declaration of the facts of the refusal.
2079.17. (a) As soon as practicable, the selling agent shall
disclose to the
buyer and seller whether the selling agent is acting in the real
property
transaction exclusively as the buyer's agent, exclusively as the
seller's
agent, or as a dual agent representing both the buyer and the
seller. This
relationship shall be confirmed in the contract to purchase and
sell real
property or in a separate writing executed or acknowledged by
the seller, the
buyer, and the selling agent prior to or coincident with execution
of that
contract by the buyer and the seller, respectively. (b) As soon
as
practicable, the listing agent shall disclose to the seller whether
the
listing agent is acting in the real property transaction exclusively
as the
seller's agent, or as a dual agent representing both the buyer
and seller.
This relationship shall be confirmed in the contract to purchase
and sell real
property or in a separate writing executed or acknowledged by
the seller and
the listing agent prior to or coincident with the execution of
that contract
by the seller. (c) The confirmation required by subdivisions (a)
and (b) shall
be in the following form:
_____________________________ is the agent of (check one):
(Name of Listing Agent)
( ) the seller exclusively; or ( ) both the
buyer and seller.
__________________________________________________________________
(Name of Selling Agent if not the same as the Listing
Agent)
is the agent of (check one):
( ) the buyer exclusively; or ( ) the seller
exclusively; or ( ) both the buyer and seller.
(d) The disclosures and confirmation required by this section
shall be
in addition to the disclosure required by Section 2079.14.
2079.18. No selling agent in a real property transaction may
act as an
agent for the buyer only, when the selling agent is also acting
as the
listing agent in the transaction.
2079.19. The payment of compensation or the obligation to
pay
compensation to an agent by the seller or buyer is not necessarily
determinative of a
particular agency relationship between an agent and the seller
or
buyer. A listing agent and a selling agent may agree to share
any compensation
or commission paid, or any right to any compensation or commission
for
which an obligation arises as the result of a real estate transaction,
and the
terms of
any such agreement shall not necessarily be determinative of a
particular relationship.
2079.20. Nothing in this article prevents an agent from selecting,
as a
condition of the agent's employment, a specific form of agency
relationship
not specifically prohibited by this article if the requirements
of Section
2079.14 and Section 2079.17 are complied with.
2079.21. A dual agent shall not disclose to the buyer that
the seller is
willing to sell the property at a price less than the listing
price, without
the express written consent of the seller. A dual agent shall
not disclose to
the seller that the buyer is willing to pay a price greater than
the offering
price, without the express written consent of the buyer. This
section does not
alter in any way the duty or responsibility of a dual agent to
any principal
with respect to confidential information other than price.
2079.22. Nothing in this article precludes a listing agent
from also
being a selling agent, and the combination of these functions
in one agent does
not, of itself, make that agent a dual agent.
2079.23. A contract between the principal and agent may be
modified or
altered to change the agency relationship at any time before the
performance
of the act which is the object of the agency with the written
consent of the
parties to the agency relationship.
2079.24. Nothing in this article shall be construed to either
diminish
the duty of disclosure owed buyers and sellers by agents and their
associate licensees, subagents, and employees or to relieve agents
and their
associate licensees, subagents, and employees from liability for
their conduct in
connection with acts governed by this article or for any breach
of a fiduciary
duty or a duty of disclosure.