Consumer Guide to Agency Relationships: Are you complying with the law?
On August 3, 2015
By Peg Ritenour, OAR Vice President of Legal Services/Administration
Although the Consumer Guide to Agency Relationships has been required for over 10 years, there’s still some confusion about when it must be provided and to whom. The following Q&A addresses these issues as well as what to do if a consumer won’t sign the Guide and your record keeping obligations.
Q: If I am the listing agent, when do I have to give the seller my Consumer Guide to Agency Relationships?
As the listing agent, you are required to provide the seller with the Consumer Guide before you show or market the seller’s property. The most logical time to do this would be to incorporate it into your listing presentation.
Q: As a listing agent, will I ever have to give the buyer a Consumer Guide?
As the listing agent, you will only have to give the buyer a Consumer Guide if you are working directly with the buyer. If the buyer is working with a cooperating agent, that agent — not you — is required to provide the buyer with the Consumer Guide developed by their brokerage.
Q: If I am working directly with a buyer, when do I have to give the buyer the Consumer Guide?
The buyer must be given a Consumer Guide before the earliest of the following events:
- Initiating a prequalification to determine whether the buyer has the financial ability to purchase or lease a particular property;
- Requesting specific financial information from the buyer to determine their ability to purchase or finance real estate in a particular price range;
- Showing the property to the buyer, other than at an open house;
- Discussing making an offer to purchase or lease real property with the buyer; or
- Submitting an offer to purchase or lease real property on behalf of the buyer.
Q: How do I give a buyer a Consumer Guide if the first thing I do is to pre-qualify him over the telephone?
The law specifically addresses telephone conversations. It provides that if an event that normally triggers your obligation to provide the Consumer Guide happens on the telephone, then you must verbally disclose the nature of your agency relationship in that conversation. You are then required to give the buyer a Consumer Guide at the first meeting you have with him.
Q: Do I have to give every person who comes to an open house a Consumer Guide?
No. The open house situation is specifically exempted from those events that trigger your duty to give the buyer a Consumer Guide.
Q: If a buyer comes back at the end of the open house and I begin to pre-qualify him or ask him for financial information, do I have to give him a Consumer Guide at that time?
Yes. Since you are now going beyond just making the property available for him to tour at the open house and are doing a pre-qualification, your duty to provide a Consumer Guide would be triggered.
Q: I am showing a FSBO to a buyer that I represent. Do I have to give the seller a copy of my brokerage’s Consumer Guide?
No. Only agents representing the seller must provide a Consumer Guide to the seller. If you are acting as the buyer’s agent, you are not required to give this document to a seller. However, you are required to disclose to the seller at first contact that you represent the buyer and any intent to seek compensation from the seller.
Q: Does the brokerage need to maintain a copy of the Consumer Guide that the consumer signed in its records? What if that party never enters into a transaction?
Regardless of whether a transaction ever occurs, the brokerage is required to maintain a copy of that Consumer Guide for three years.
Q: I know the consumer is supposed to sign a receipt for the Consumer Guide. What do I do if the buyer or seller refuses to sign?
Leave a copy of the Consumer Guide with the consumer and note on your copy or the receipt portion that you keep that the consumer refused to sign it.
For information on the Consumer Guide exemption for Commercial transactions click here. Much more information and Q & A on agency can also be found in the Legal Section at www.ohiorealtors.org.