Monika McGillicuddy
NH Real Estate Training and Social Media Consulting Services
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Buyer Agent or Facilitator which would you rather?

As most New Hampshire agents know, there a have some changes to our Agency options with the adoption of Designated Agency and Facilitator.

All these changes become effective Jan 1 2009 and while no one has to adopt the changes right away they do need to use the new disclosure form immediately!

The new required Agency Disclosure form is now called Brokerage Relationship Disclosure and it is required to be used as of today January 1 2009.

The new form is 2 pages and it is the only Brokerage Disclosure form allowed to be used and approved by the NH REC.

It is posted on the NH Real Estate Commission website and on NHAR’s website.

If you’re showing homes and meeting the buyers for the 1st time make sure you are using this new form…Brokerage Relationship form.

Happy Selling in 2009!

Good afternoon,

For those who have not yet heard, House Bill 1384, the Designated Agency bill, passed the full Senate this morning (March 27), leaving the Governor’s signature as the only remaining step before it becomes law, with an effective date of Jan. 1, 2009.

The purpose of this message is to thank 2007 President Bonnie Guevin for having the foresight and courage to establish the 2007 Agency Task Force; and, to thank and congratulate the Agency Task Force members, under the leadership of Chair Kathy Roosa, for their efforts in providing the New Hampshire Association of REALTORS® the roadmap that led to the bill’s successful passage by the House and Senate.

It is sometimes no small feat to achieve victory within the New Hampshire legislative process. I am well aware of the political minefield awaiting any bill introduced; however, I am very pleased and proud that we were able to collectively represent the best interests of consumers and our members before the Legislature in a manner that proved to be credible. Thank you to our Public Policy Committee, with the guidance of Chair Jeff Keeler and Government Affairs Director Chris Nicolopoulos, for leading that effort at the State House.

With the Governor’s signature on HB 1384, we can begin the next steps to educate REALTORS® across New Hampshire on this important and beneficial enhancement to the Real Estate Practice Act.

Thank you all for your superb efforts!

Sincerely,

Jim Lyons, REALTOR®
2008 President, NHAR ]]> http://www.nhrealestatetraining.com/agency-qa/designated-agency-bill-a-success/feed/ 0 http://www.nhrealestatetraining.com/agency-qa/cautioncant-be-a-designated-agent-yet/ http://www.nhrealestatetraining.com/agency-qa/cautioncant-be-a-designated-agent-yet/#comments Wed, 17 Oct 2007 23:05:52 +0000 Monika McGillicuddy http://monikamcgillicuddy.wordpress.com/2007/10/17/cautioncant-be-a-designated-agent-yet/ But we’re getting closer…

Today with a standing room only crowd the New Hampshire Association of REALTORS board of directors voted to pass the recommended proposed Designated Agency legislation with some added language presented by the Exclusive Buyer agents. The language added appears in Italics below.

XII. Dual agency does not occur in firms that represent buyers only who have appointed designated buyers’ agents, or firms that represent sellers only who have appointed designated sellers’ agents within the firm.

It passed with hardly a whimper as a jammed room of state directors and visitors alike listened to a brief presentation and then cast a vote.

They cast a vote for all of us today and most importantly for the public. The consumer will finally, if this passes through legislation, get the representation they deserve!

How sweet it will be!

Caution…You Can Not act as a Designated Agent yet….If and I do mean If we get through the legislation process we’re looking at maybe 2009 before it becomes law! So Please don’t think you can do it now!

I’ll keep you updated as we go along. Feel free to post a comment or a question and I’ll do my best to get you the answer.

Read more here …What is Designated Agency?

Draft Copy of Proposed Designated Agency Legislation. Without the new language to XII added.

Designated Agency and Facilitation in NH

Till later

Today with a standing room only crowd the New Hampshire Association of REALTORS board of directors voted to pass the recommended proposed Designated Agency legislation with some added language presented by the Exclusive Buyer agents. The language added appears in Italics below.

XII. Dual agency does not occur in firms that represent buyers only who have appointed designated buyers’ agents, or firms that represent sellers only who have appointed designated sellers’ agents within the firm.

It passed with hardly a whimper as a jammed room of state directors and visitors alike listened to a brief presentation and then cast a vote.

They cast a vote for all of us today and most importantly for the public. The consumer will finally, if this passes through legislation, get the representation they deserve!

How sweet it will be!

Caution…You Can Not act as a Designated Agent yet….If and I do mean If we get through the legislation process we’re looking at maybe 2009 before it becomes law! So Please don’t think you can do it now!

I’ll keep you updated as we go along. Feel free to post a comment or a question and I’ll do my best to get you the answer.

Read more here …What is Designated Agency?

Draft Copy of Proposed Designated Agency Legislation. Without the new language to XII added.

Designated Agency and Facilitation in NH

Till later

Read my previous post for complete details Designated Agency and facilitation in NH.

Read also a draft copy of the legislation here draft-agency-legislation-9-12-07.pdf

NHAR’s Legal committee chair Mary Beth Rudolph describes what the NH version of Designated Agency would actually look like in the field.

I’ve reprinted it with her permission as it is vitally important that all New Hampshire REALTORS understand that if approved what these changes would mean to them.

Designated agency (aka appointed agency) is a practice where one or more individual agents in a firm is appointed or designated to represent the interests of a client to the exclusion of all other agents affiliated with the same firm. A “designated buyer agent” is able to provide full representation to the buyer client even if the buyer is purchasing an in-house listing as long as that buyer agent is not also the “designated seller agent” for that listing. The reverse is also true for the designated seller agent. The individual agent becomes a dual agent only when he or she is both the designated agent for the buyer and the designated agent for the seller (i.e. the buyer you represent wants to purchase one of your personal listings).

The principal broker is responsible for appointing which agent is designated to represent each client of the firm.

The advantage of designated agency is that the consumer will receive full, more personal representation by their designated agent. It mirrors consumers’ expectations. When consumers hire an agent, they don’t expect that every other salesperson in that company is representing them or has access to all their confidential information.

In the model recommended by the NHAR Agency-Task Force, the principal broker can delegate their appointing powers to a managing broker or other broker in the firm who becomes the appointing agent. In this model, when the appointing agent names both a designated buyer agent and second agent as a designated seller agent to represent the two parties in an in-house sale, the appointing agent becomes a dual agent. In this example, the two designated agents are not considered dual agents.

Without the delegation of appointing powers to an appointing agent, the principal broker retains the power of appointing and also is the dual agent. In either case the principal broker and managing broker still have full responsibility for the activities of all the licensees affiliated with them even if they delegate their appointing powers to a separate appointing agent.

Some key points to note about designated agency:

· Consent of the parties is required – that can be obtained upfront with the listing agreement and buyer agency agreement.

· If the firm is a designated agent for both the buyer and the seller in a transaction, written notice must be given to the client – that can be done on the Purchase & Sales Agreement or before.

· Dual agency is not eliminated – it is just limited.

· Control of confidential information is essential – offices that elect to practice designated agency will have to adopt and enforce policies to control the sharing of confidential information about clients between agents. That can mean separating pending files from listing files, removing confidential client information from listing files available to all agents in the office, restricting access to pending files, the use of locked cabinets and desks, private conference rooms for meetings with clients and instituting a policy of discussing properties and not people at sales meetings, etc.

· Over 50% of states have passed legislation enabling the practice of designated agency over the last fifteen years.

If this legislation is enacted, firms will have a choice about whether they want to practice designated agency or traditional agency. They can do nothing and continue to operate the way they have in the past without any changes. For those firms which elect to practice designated agency, all offices and licensees of that firm must practice designated agency. Obviously, if this legislation passes, REALTORS will need training, sample policies, new forms, etc……Mary Beth Rudolph

Questions or concerns about this feel free to comment here and I’ll do my bet to get answers for you. Remember this is only proposed and even if approved on the 17th we still have a long way to go before it becomes practice.

It is the recommendation of the Agency Task Force that the Board of Directors proceed with approving this legislation. My husband past NHAR president Jay McGillicuddy sat on the task force and I know he felt it was a very good thing. This legislation while requiring a learning curve is in the best interest of REALTORS and the public by eliminating Dual Agency for those that do not wish to practice it.

If this passes the Board of Directors on the 17th it will continue to go through a lengthy approval process. Interested in reading a Draft copy of the proposed legislation just click here draft-agency-legislation-9-12-07.pdf

I’d be very interested in your opinions and remember this a DRAFT only and far from being lawful.

FAQ on the NEW Agency / Non-Agency Disclosure Form

As many of you know, recently the New Hampshire Real Estate Commission made changes to their Rules and Regulations. These rules went into affect on May 1 2007.

Are you using the new form? Do you understand how to use the new form?

They updated the 1. Listing agreements, you click here to see the changes>>>Listing agreement changes

2. Buyer Agency agreements>>>Buyer Agency Contract

3. Dual Agency Consent agreement>>>Dual Agency

The changes are an attempt to bring the Rules in line with the Law and the way we practice Agency in New Hampshire.

The commission also required that we ALL use only ONE agency disclosure form. One that the commission created and has approved.

That means…We no longer can use the disclosure form that we have been using for YEARS … WE now have a NEW form one that every licensee has to use.

Many agents have had questions about this new form…so many questions that it became apparent that we needed some answers…and we needed some consistent answers.

NHAR…The NH Association of REALTORS with the APPROVAL of the New Hampshire Real Estate Commission has just come out with a FAQ on the Agency / Non-Agency Disclosure.

This is great news as it will assure that we’re all on the same page regarding the new disclosure form and how to use it.

Reprinted below is the guide for your use. It will be posted on the NHAR website so that you can download it.

1. Who must use the NH Real Estate Commission’s new Agency and Non-Agency Disclosure Form?

All licensees – whether residential or commercial. It is a mandatory form replacing the commission’s prior version as well as other versions prepared by many companies.

2. Who must receive the agency disclosure?

All buyer prospects and seller prospects as well as prospective tenants and landlords.
3. When must the agency disclosure be presented?

At first business meeting, prior to any discussion of confidential information. The business meeting does not have to be a face-to-face meeting. If you are engaging in substantive discussions about buying or selling real estate over the phone or via email, especially if you begin to discuss any specific properties, these actions would qualify as the first business meeting. We recommend that if the first business meeting is not face-to-face that you advise the consumer of the agency disclosure form, advise them who you currently represent, if anyone, and then complete the form and either fax or email them the form either during or immediately after your electronic meeting.

4. Is a showing a business meeting?

Yes.

5. What should be entered in the blank at the bottom of the form: “Currently, the licensee represents _____________”?

The commission wanted to leave a place on the form so that a listing agent could disclose their status to a buyer consumer or a buyer agent could disclose their status to a FSBO. If you are having merely general introductory discussions and do not represent anyone yet, you fill in “no party”, “no one”, “nobody” or words to that effect in that space.

6. Can you provide examples illustrating the use of the form in various scenarios?

(a) Listing agent meeting a buyer prospect at her listing:

Present disclosure to buyer prior to showing – on form enter: “Currently, the licensee represents seller.”

(b) Agent meeting a seller at their home for the purpose of gathering information for a CMA:

Present disclosure to seller – on form enter: “Currently, the licensee represents no one.”

(c) Agent meeting a buyer at their office for the first time to discuss homebuying:

Present disclosure to buyer – on form enter: “Currently, the licensee represents no one.”

(d) Agent meeting a buyer at their office to show them three homes – one listing is their company’s (ex. ABC Realty), two others are other company’s listings:

Present disclosure to buyer – on form enter: “Currently, the licensee represents sellers of ABC Realty’s listings and no party when showing other companys’ listings.”

(e) Buyer agent showing a FSBO listing to their buyer client:

Present disclosure to FSBO seller – on form enter: “Currently, the licensee represents buyer.”

7. Once I’ve provided this disclosure to a consumer do I need to provide them another one when they decide to hire me?

No. The listing agreement or the buyer agency agreement explains the change in the relationship. The intent of the new form is to eliminate the need for repeated execution of the same disclosure form when circumstances change.

8. Does the listing agent need to present the agency disclosure form to a buyer working with another agent on accompanied showings?

No. In that case, it is the buyer’s agent’s obligation to provide the disclosure form

9. Do I have to provide the agency disclosure form to buyers who attend my open houses?

It is not required as long as you disclose your relationship with the seller by sign, poster, pamphlet or other conspicuous means. You may want to provide copies of the disclosure form at the open house for informational purposes.

10. What if the consumer will not sign the disclosure form?

Note that fact on a copy of the disclosure form and retain the copy for three years.

Hope this helps clarify some of the questions many of us have had about the new form. The answers have all been approved by the NH Real Estate Commission.

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