Chapter. AGENCY Flashcards
Types of agencies are not defined under Hawaii Law so what is this called
Common Law
Common law depends on what?
Common law is relied on to INTERPRET agency relationships
An agency is defined by what
A B CS
Agreement
Benefit
Control
An agency relationship can be
Expressed (not in writing)
But
Implied ( by words or actions)
Every type of agency has a fiduciary responsibility/ relationship.
Duties the agent has to the principal.
What are they?
GOLD CAR HI
1) . Good faith: is a deliberate INTENTION of not defrauding the other party
2) . Obedience: agent must carry out wishes of the principal
3) Loyalty: places principal’s interest above all others, even his own
4) . Disclosure: agent’s duty to disclose all relevant information to the principal
5) . Confidentiality: confidentiality requires agent not to discuss w/ anyone, except principal, any transaction that may negatively for the principal
6) . Accounting: is the need to document all monies paid or rec’d by the agent. Agent must keep all relevant documents legally for specified amt of time. And all parties must have copies.
7) . Reasonable Care: agent must exercise it in the transaction to the best of ability
8) . Honesty agent must be truthful to principal
9) . Integrity: agent must act ethically and morally regarding the transaction
A client is in a fiduciary relationship w/ the licensee BUT a customer is not.
With a customer there is no fiduciary duty yet an agent must act in good faith
And disclose material facts to a customer.
Agent must be careful not to blur the customer/client lines. An agent can UN intentionally create a client relationship .
SELLER’s BROKER
1). Listing: if the seller signs a listing agreement with the broker
BUYERS BROKER
1). Selling if obtained thru MLS
2) . Cooperating if obtained thru MLS
3) . Participating if obtained thru MLS
4) . Buyers Agent. If brokers acts as an agent for the buyer NOT obtained thru MLS
What are the 8 agents
- Sellers Agent. ( Listing agent).
- Buyers Agent. Broker who acts as agent for buyer not obtained by MLS
- Sub agent ie salesperson is agent to broker who is agent for seller therefore salesperson is a sub agent. In Hi a cooperating broker is also called a sub agent. Not a universal concept.
- Universal Agent. Serves the principal in any capacityie agent w/ general power of attorney.
- Selling Agent. ( cooperating agent or participating agent) is a broker who represents a buyer, which is obtained through MLS
6 General Agent. Represents the principal in a particular business where the agency relationship is continuous. An employee is a general agent for the employe; a property manager is a general agent for the owner; real estate agent is a general agent of the brokerage - Special Agent represents the principal in a particular activity or transaction; therefore it is NOT continuous. In real estate, client representation in buying and selling of real property. When the transaction is done the agency relationship ends.
Multiple agencies relationships at the same time. A salesperson is in a general agency relationship with his principal broker and in a special agency relationship with the clien.
- Non-Agent (facilitator or transactional agents) a non agent is broker who seeks on to facilitat real property sale. The buyer and seller are provided with a limited form of representation but without any fiduciary obligations by the broke
Agencies
1). Single Agency when one agent represents either the buyer or seller.
The unrepresentative party is a customer.
2). Dual Agency. When a brokerage firm represents 2 or more parties (usually buyer & seller) in same transaction. A duel agency applies if any licensee from a brokerage represents both sides of a transaction.
A dual agency occurs in the following situations
1) . Same licensee represents both buyer & seller
2) . 2 different licenses from same brokerage represent the seller and the buyer
3) . A licensee buys his own listing
4) . A potential buyer represented by a different licensee in the same brokerage firm makes an offer on the listed property
5) . A licensee represents the seller and another licensee from a branch office represents the buyer
6) a license represents 2 different buyers regarding the same property
In a dual agency, there is a fiduciary responsibility to both parties
Agent must remain neutral in transaction.
Cannot disclose sellers willingness to accept less nor can he disclose buyers willingness to pay more.
Are dual agencies permitted in Hawai?
Dual agencies are legal in Hawaii but only if both buyer and seller provide
WRITTEN CONSENT WITH A DUAL AGENCY ADDENDUM.
HAR 16-99 certain disclosures of agency relationships must occur at specific times
1) at THE TIME OF LISTING brokerage firm lists property, the listing brokerage mus disclose
A). Whether seller authorizes listing brokerage to designate a sub agent through MLS or
B) seller authorizes the listing brokerage to share commissions with sellers sub agent or buyer’s agents
Must be dated in writing and signed by both seller and brokerage firm
2). PRIOR TO PRPARING between buyer and seller, the following must be made in writing or orally
A). If licensee acting as the listing brokerage is acting alone ( no sub agency brokerage firm) and is providing services to the buyer, the licensee must disclose whom the licensee represents in the transaction
B) if licensee Is acting in cooperation with a listing brokerage ( sub agency firm) has found a buyer in the transaction, the licensee must disclose whom the licensee represents in the transaction C). If no listing brokerage, each licensee providing services to the buyer with respect ion in transaction,must disclose whether he represents the buyer or seller
3). PRIOR TO PRESENTING a sales contract to the seller, the following disclosure MUST disclose at least once to seller in writing or orally
A. The licensee acting as listing brokerage firm must disclose who the selling brokerage firm (buyers brokerage firm) represents in the transaction
B. If there is no listing brokerage firm, each licensee in the transaction must disclose to seller whether licensee represents the buyer or the seller in the transaction
Therefore PRIOR TO PREPARING the contract and PRIOR TO PRESENTING the contract a written or oral disclosure must be made between the buyer and seller.
4). This disclosure must then be confirmed in writing the sales contract
#2 and #3 MUST be confirmed in writing In a separate paragraph titled AGENCY DISCLOSURE in the sales contract
