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Field Guide to Agency Disclosure

(Updated January 2014)

Managing risk is a necessity for real estate practitioners. According to Barron's Dictionary of Real Estate Terms, agency disclosure "is a written explanation, to be signed by a prospective buyer or seller, explaining to the client the role that the broker plays in the transaction," (Barron's Educational Series, 2000). This Field Guide covers various aspects of agency disclosure, including policies, forms, and legislation. Further your knowledge of this complex topic with our selection of articles found below. (K. Stockert, Information & Web Content Specialist)


Agency Disclosure Facts From NAR's 2013 Legal Scan (aka “Legal Trends Report”)

  • 37% of the survey respondents reported a moderate or higher level of current disputes involving Agency issues. 
  • 22% of the respondents believe there is a significant need for training on Agency issues in general.

First-time and repeat buyers who signed a disclosure statement:

  • 62% of buyers signed a disclosure agreement
  • 30% signed a disclosure agreement at their first meeting
  • 20% signed a disclosure agreement when the contract was written
  • 12% signed a disclosure agreement at another time
  • 20% of buyers did not sign a disclosure agreement
  • 19% of buyers where not sure whether they signed a disclosure agreement

Source: The 2013 Profile of Home Buyers and Sellers


About Agency Disclosure

Dual Agent: A Misunderstood Concept, (RealtyTimes, Nov. 25, 2013).

Understand Agency Relationships, (REALTOR® Magazine, n.d.).

The Riskiest Business, (REALTOR® Magazine, Sept. 2011).

Real Estate Brokerage Research in the New Millennium, (Journal of Real Estate Literature, 2011). Q

A Critical Examination of Broker Minimum Service Laws, (Journal of Housing Research, 2010). Q

Must I Disclosure My Client Relationship? (REALTOR® Magazine, Sept. 2010).

Walking the Fine Line: Distinguishing between tokens of appreciation and bribes, (Journal of Property Management, Nov./Dec. 2010). Q

Brokers Must Reveal More, (Wall Street Journal, Sept. 2, 2010).

Agency Disclosure in the Real Estate Transaction and the Impact of Real Estate Policies, (The Journal of Real Estate Research, July/Sept. 2009). Q


Disclosure Recordkeeping

Mitigating disclosure risk starts with solid recordkeeping practices. Knowing which materials to keep and how to store them is the challenge. The articles below offer some ideas for best practices and procedures. You can also take a page out of libraries' books and subscribe to the LOCKSS method (Lots of Copies to Keep Stuff Safe). Keep in mind neither digital nor print are impervious to the perils of disaster—maintaining copies in various formats and locations can often provide the greatest longevity for your records. However, ensuring the security and privacy of all copies of materials is an important factor to consider.

Fighting the Frivolous, (REALTOR® Magazine, Oct. 2012).

National Clean Off Your Desk Day: 6 Easy Tips, (REALTOR® Magazine, Jan. 2012).

Protect Your Computer: Private WiFi Review, (Freelance Switch, Aug. 17, 2011).

Standing at the Altar, (Journal of Business Case Studies, July/Aug. 2011). Q

Transaction Management Solutions: Get Smoother Transactions, (REALTOR® Magazine, Mar. 2008).

The Real Deal, (Print Professional, 2007). Q

Contact a legal professional (such as someone on your state Association of REALTORS®’) legal hotline to learn about the disclosure and recordkeeping requirements specific to your state. Here are some examples for Ohio and North Dakota:

Record Keeping, (Ohio Association of REALTORS®, n.d.).

Guidelines for Record Keeping, (North Dakota Real Estate, 2008).


Dual Agency

According to the NAR State Issues Tracker, as of June 2013, “a great majority of the jurisdictions [surveyed] (91 percent)* allow dual agency with appropriate disclosures and accompanying consents” and “Several states' rules require specific forms or language to be included in a dual agency agreement.”

Of course, the law is a living and breathing organism that is always changing, so be sure to check with your state or territory’s statutory code for the most up-to-date information on agency laws in your state. Or, if you are a REALTOR®, contact your state association of REALTORS®’ legal hotline. To find your state association, please visit this page and select your state from the list.

*The jurisdictions surveyed include the 50 U.S. states, District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands.

Rathbun REALTORS® Talk About Real Estate, (Daily Iowegian, May 23, 2014).

Dual Agency is Controversial Among Brokers, (Philadelphia Inquirer, Apr. 13, 2014).

Dual Agent Dilemma, (Philly.com, Jan. 2, 2014).

HUD Delays Dual Agency Ban on FHA Short Sales, (REALTOR® Magazine, Sept. 26, 2013).

Dual Agency Representation: Incentive Conflicts or Efficiencies? (The Journal of Real Estate Research, 2013). Q

Commission Splits of Real Estate Agents with Affiliated Firms, (Journal of Housing Research, 2013). Q

A Peek 'Behind the Curtain' at Real Estate Practices, (Inman News, Aug. 19, 2011).

When Agents Play Two Roles, (New York Times, Aug. 11, 2011).

Agency Relationships, (Realty Times, Aug. 11, 2011).

Make It All About the Buyers, (REALTOR® Magazine, June 2011).


Disclosure Materials From Your State

The laws and regulations for agency disclosure may vary from state to state. As a member of the National Association of REALTORS®, you can contact your State Association of REALTORS® for specific details on your state's disclosure requirements. The National Association of REALTORS® collects information on state specific legal issues in the State Issues Tracker:

National Association of REALTOR®'s State Issues Tracker, (See: Agency).

Some state real estate commissions have included helpful materials on their websites regarding agency disclosure. A few examples:

The Louisiana Real Estate Commission Agency Disclosure Forms

Massachusetts Office of Consumer Affairs & Business Regulation Dual Agency web page

Commonwealth of Virginia Division of Real Estate and Professional Licensing Forms and Agency Disclosure Statement

State of Ohio Department of Commerce Division of Real Estate and Professional Licensing Forms

Illinois Salesperson to Broker Applied Real Estate Practices, HD 1375 D34s

Or run this search to find more government resources:

real estate agency disclosure inurl:gov


Agency Legal Cases

Real Estate; Reports from Longwood University Highlight Recent Findings in Real Estate, (Real Estate Weekly News, Aug. 2013). Q

Contract Incentives and Effort, (Journal of Real Estate Research, Oct.-Dec. 2010). Q

Broker Awarded Commission from Failed Transaction, (Mich. Ct. App., Nov. 20, 2008).

Broker Cannot Collect Undisclosed "Consulting Fee" (2003), (National Association of REALTORS®, Letter of the Law).


Research on Your Own

To search for the most recent articles on this topic, go to ProQuest from the Library's home page and enter subject terms such as:

 Real estate agents & brokers

  • Real estate agents & brokers
  • Enter into ProQuest text box as SUB(real estate agents & brokers) AND NOT hoover
  •     Disclosure and Real Estate Agents & Brokers
  •     Enter into ProQuest text box as disclos* AND SUB(real estate agents & brokers)

Information Savvy!

Many websites, such as Wikipedia, can be great resources to quickly get oriented on a subject before conducting more in depth research. However, anyone in the world can create and maintain a website or write a seemingly legitimate article and may, intentionally or unintentionally, publish false or "misinformation." When reviewing information on the Internet, you should always consider the ABC's:

  • Accuracy. Is the information accurate? Can you confirm the same information using other resources published by a different author or organization?
  • Author. Who composed the information? Can you easily identify the author and contact the author or website publisher?
  • Bias. What bias might the author or author organization have?
  • Credibility. What is the author’s or author organization’s credentials for publishing the information? What expertise, experience, or education does the author have in this area that makes him or her qualified to write on the subject matter?
  • Currency. When was the web page last updated? Is it possible the information might have changed since this web page was last published?
  • Critical eye! Remember to always use your discretion and critical eye to determine whether information you find on the web (or even in books and news sources!) is trustworthy. Putting websites to the ABC test will get you started in developing a strong critical eye.

eBooks & Other Resources

eBooks.realtor.org

The following eBooks and digital audiobooks are available to NAR members:

Real Estate Salespeople, Beware! (Adobe eBook)

Get It Together (Adobe eReader)

The Real Estate Entrepreneur (Adobe eReader)

Books, Videos, Research Reports & More

The resources below are available for loan through Information Central. Up to three books, tapes, CDs and/or DVDs can be borrowed for 30 days from the Library for a nominal fee of $10. Call Information Central at 800-874-6500 for assistance.

Digest of Real Estate License Laws and Current Issues, (Lake City, UT: Arello (published annually). HD 1383 N21d

Field Guides & More

These field guides and other resources in the Virtual Library may also be of interest:

Field Guide to Errors & Omission Insurance

InfoCentral Blog


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The inclusion of links on this field guide does not imply endorsement by the National Association of REALTORS®. NAR makes no representations about whether the content of any external sites which may be linked in this field guide complies with state or federal laws or regulations or with applicable NAR policies. These links are provided for your convenience only and you rely on them at your own risk.