This law suit is about being a Transaction Broker in Florida.
|
Representation
|
Single Agency
|
Transaction Broker
|
|
Fiduciary
|
Yes
|
No
|
|
Care, Skill and Diligence
|
Yes
|
Yes
|
|
Obedience
|
Yes
|
No
|
|
Loyalty
|
Yes
|
No
|
|
Disclosure
|
Full
|
Material Facts
|
|
Accounting
|
Yes
|
Yes
|
|
Confidentiality
|
Yes
|
Limited
|
|
Honesty and Fairness
|
Yes
|
Yes
|
|
Present Offers Timely
|
Yes
|
Yes
|
|
Mutually Agreed Duties
|
Yes
|
Yes
|
Agents in Florida know that if you do not DISCUSS Agency the State of Florida assumes the agent is a Transaction Broker. By law a Buyer or Seller is NOT REQUIRED to sign any anything or agree to any form of Agency because the current laws of Florida state that the Transaction Broker relationship exists in all transactions.
In Florida there are three types of real estate Agency Relationships that pertain to buying a property:
Single Agency
Transaction Brokerage
No Brokerage
If an agent wants to give a seller or buyer more representation (i.e. NEGOTIATE for HER CLIENT) than Transaction Broker allows under Florida law we must discuss Agency and we must get consent and the consent must be given in writing.
Single Agency allows an agent to provide additional service and representation. Florida agents know that prior to showing a property, signing a listing agreement or an agreement to represent a party an agent must provide a disclosure form. The forms look like this:
NO BROKERAGE RELATIONSHIP
A REAL ESTATE LICENSEE OWES TO A CUSTOMER WITH WHOM THE LICENSEE HAS NO BROKERAGE RELATIONSHIP THE FOLLOWING DUTIES:
1. Dealing honestly and fairly;
2. Disclosing all known facts that materially affect the value of the residential property which are not readily observable to the buyer; and
3. Accounting for all funds entrusted to the licensee.
______________________ ________ ______________________ ________
Signature Date Signature Date
SINGLE AGENT NOTICE
FLORIDA LAW REQUIRES THAT A REAL ESTATE LICENSEE OPERATING AS A SINGLE AGENT DISLCLOSE TO BUYERS AND SELLERS THEIR DUTIES. As a Single Agent the company and its associates owe to you the following duties:
1. Dealing honestly and fairly;
2. Loyalty;
3. Confidentiality;
4. Obedience;
5. Full disclosure
6. Accounting for all funds;
7. Skill, care, and diligence in the transaction;
8. Presenting all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise in writing; and
9. Disclosing all known facts that materially affect the value of residential real property and are not readily observable.
______________________ ________ ______________________ ________
Signature Date Signature Date
TRANSACTION BROKER NOTICE
FLORIDA LAW REQUIRES THAT REAL ESTATE LICENSEES OPERATING AS A TRANSACTION BROKER DISCLOSE TO BUYERS AND SELLERS THEIR ROLE AND DUTIES IN PROVIDING A LIMITED FORM OF REPRESENTATION. As a Transaction Broker, the company and its associates will provide you a limited form of representation that includes the following duties:
1. Dealing honestly and fairly;
2. Accounting for all funds;
3. Using skill, care, and diligence in the transaction;
4. Disclosing all known facts that materially affect the value of residential real property and are not readily observable to the buyer.
5. Presenting all offers and counter offers in a timely manner, unless a party has previously directed the licensee otherwise in writing;
6. Limited confidentiality, unless waived in writing by a party. This limited confidentiality will prevent disclosure that the seller will accept a price less than the asking or listed price, that the buyer will pay a price greater than the price submitted in a written offer, of the motivation of any party for selling or buying a property, that a seller or buyer will agree to financing terms other than those offered, or of any other information requested by a party to remain confidential; and
7. Any additional duties that are entered into by this or separate written agreement. Limited representation means that a buyer or seller is not responsible for the acts of the licensee. Additionally, parties are giving up their rights to the undivided loyalty of the licensee. This aspect of limited representation allows a licensee to facilitate a real estate transaction by assisting both the buyer and the seller, but a licensee will not work to represent one party to the detriment of the other party when acting as a transaction broker to both parties.
______________________ ________ ______________________ ________
Signature Date Signature Date
CONSENT TO TRANSITION TO TRANSACTION BROKER
FLORIDA LAW ALLOWS REAL ESTATE LICENSEES WHO REPRESENT A BUYER OR SELLER AS A SINGLE AGENT TO CHANGE FROM A SINGLE AGENT RELATIONSHIP TO A TRANSACTION BROKERAGE RELATIONSHIP IN ORDER FOR THE LICENSEE TO ASSIST BOTH PARTIES IN A REAL ESTATE TRANSACTION BY PROVIDING A LIMITED FORM OF REPRESENTATION TO BOTH THE BUYER AND THE SELLER. THIS CHANGE IN RELATIONSHIP CANNOT OCCUR WITHOUT YOUR PRIOR WRITTEN CONSENT. (I agree that my agent may assume the role and duties of a transaction broker. (Must be initialed or signed).
______________________ ________ ______________________ ________
Signature Date Signature Date
The Burchfield's sued Realty Executives for a "breach of an implied fiduciary duty" since the agent never gave them the form to sign. The court ruled in favor of Realty Executives and the Burchfield's appealed. The District Court of Appeal of the State of Florida, Fifth District, affirmed the trial court decision and this is why:
1. The Transaction Broker statue "unequivocally replaces the fiduciary duty owed by real estate brokers at common law with a more narrowly defined set of statutory duties." Because of this, Realty Executives didn't represent their client in a fiduciary capacity so there was no breach.
2. The State of Florida's Transaction Brokerage statute changes the "presumption" of Transaction Brokerage if an agent does not provide the Agency disclosure form. The statute says that the presumption can only be challenged IF there is a written agreement between the agent and her client establishing a different form of Agency. Since there was no alternate Agency relationship established the court ruled in favor of Realty Executives (Burchfield v. Realty Executives, 971 So. 2d 138 (Fla. Dist. Ct. App. 2007).
To share a story, buy or sell property in the Florida Keys and Key West, call me at (305) 522-1398 or e-mail me at MayaMarieThomas@Hotmail.com.com.
Maya M. Thomas
REALTOR®
(305) 522-1398
MayaMarieThomas@Hotmail.com.comw
ww.ShowcasePortfolioProperties.com
www.myspace.com/topkeysrealtor
