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Legally speaking: What should I do if they won’t sign?

By Lorie Garland, OAR Vice President of Legal Services

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 the Agency Disclosure Statement and Waiver of Duties…  

Q: My agent wrote an offer on a property listed with another brokerage. The listing is a minimum services listing with the listing agent authorizing negotiations directly with the seller. My agent completed the Agency Disclosure Statement indicating he and our brokerage represented the buyer and the listing agent and listing brokerage represented the seller. The offer was accepted, however, the buyer refused to sign the Agency Disclosure Statement prepared by my agent. Instead the seller returned an Agency Disclosure Statement listing only my agent and brokerage and that we represented the buyer. Although the listing is a minimum services listing, doesn’t the listing agent and brokerage still represent the seller? If so, what do I do about the Agency Disclosure Statement?

A: Yes. The listing agent and brokerage represents the seller. However, with a minimum services listing, the seller has agreed that some of the duties owed the client are not required to be performed. The state form required to be used for this type of listing is the Waiver of Duties Statement. The duties sellers may waive are:

  • Seeking a purchase offer at a price and with terms acceptable to the seller
  • Accepting delivery of and presenting any purchase offer to the seller in a timely manner, even if the property is subject to a contract of sale, lease, or letter of intent to lease
  • Answering the seller’s questions and providing information to the client regarding any offers or counteroffers
  • Assisting the seller in developing, communicating, and presenting offers or counteroffers
  • Answering the seller’s questions regarding the steps the client must take to fulfill the terms of any contract (within the scope of knowledge required for real estate licensure)

The form requires the seller to initial the duties waived and for the seller and listing agent to sign the form.

So what should your agent do if the accepted offer is returned with a new and inaccurate Agency Disclosure Statement? The license law provides the procedure to follow when a consumer refuses to sign the Agency Disclosure Statement. Your agent should note on the form submitted with the offer to whom and when the form was presented, the fact that the seller refused to sign and why the seller refused to sign. Your agent should also present the seller prepared Agency Disclosure Statement to the buyer. If the buyer refuses to sign, the same procedure applies to document that refusal. The agency disclosure forms are required to be maintained along with the other transaction documents for a period of three years.

Tags: legal, Legally Speaking