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Legally speaking: Can I answer that?

By Peg Ritenour, OAR Vice President of Legal Services/Administration

The OAR Legal Assistance Hotline receives an array of real estate-related legal questions — including license law issues, disclosure, contract law, ethics and commission problems, among others. In an effort to help you work within the law, our “Legally Speaking” series spotlights some of the timely questions that are being asked by REALTORS. This one involves determining information that is deemed confidential…

Q: Sometimes a buyer asks me questions about my listing or the seller’s situation that I’m not sure I can answer without violating my duty of confidentiality to my seller. What is confidential information and what should I do if I’m not sure if my client considers something to be confidential?

A: In general, confidential information includes anything that the seller tells you is confidential or anything that, if disclosed, could have an adverse effect on the seller’s position in a transaction. For example, the seller may tell you that he may be willing to accept less than list price, or his motivation to sell. This information, if learned by a buyer, could result in the buyer offering less than full price. Because it could negatively impact the seller’s position, this would be considered information you must keep confidential even if the seller doesn’t specifically state that it is confidential.

To be safe, it is best to assume that everything your client tells you is confidential unless he specifically authorizes you to disclose it. If you aren’t sure, you should check with the seller. To avoid problems in this area, OAR developed a consent  form that lists those items that the seller permits his agent to disclose. A similar form was also created to obtain consent from buyer clients regarding permissible disclosures. Besides clarifying upfront with your client what you are and aren’t allowed to disclose, the other important benefit of using such forms is that it will document your client’s consent, avoiding any later dispute.

Tags: legal, Legally Speaking