Who’s Looking Out for Me?

By: Victor Normand
Published: February 2015

Before 1990, the real estate agent who drove around with you looking at homes for sale, answered all your questions, supplied information about the house, wrote an offer, helped settle on a sale price, interpreted the home inspection and otherwise stayed with the transaction to closing was actually acting as the legal representative of the Seller, and not you, the Buyer. In fact all real estate brokers and agents in the Commonwealth of Massachusetts were duty bound to act in the best interest of their clients, the Home Seller. You would have been merely their customer.

Licensing law in Massachusetts required those brokers and agents representing the Sellers to adhere to the duties colloquially referred to as “OLD CAR”

o Obedience – Agent must carry out all lawful instructions of client.
o Loyalty – Agent must act in best interest of client.
o Disclosure – Agent must disclose all information relevant to client.
o Confidentiality – Duty to keep confidential client’s information or discussion.
o Accountability – Agent must protect and account for all money, documents, or other personal property given to her by the client.
o Reasonable Care & Due Diligence

Given the requirements of this agency relationship with the Seller client, you might be tempted to ask, “Who’s looking out for the Buyer?” And you would not have been alone on that point. The idea of Buyer Agents took hold in Massachusetts in the early 1990’s when licensing law was changed to allow for Buyer Agents. Some brokerages became exclusive Buyer Agents, serving only Buyer clients and some remained “traditional” brokerages representing Sellers as they had previously. But most real estate companies, including Acton Real Estate, became full service agencies.

So, how does the real estate consumer know who is representing them? Both the federal and state governments require brokers and their real estate agents to disclose the nature of the relationship with prospective clients up front, as soon as the first face to face meeting where a specific property is discussed in any detail, including inquiring about the list price.

To satisfy this disclosure requirement and to inform consumers, the Great Boston Real Estate Board created the Massachusetts Mandatory Licensee-Consumer Relationship Disclosure form and Certificate. The form defines each of the six types of relationships that may exist and requires the real estate agent to explain the difference and disclose which type is being offered.

Those different types are:

Seller’s Agent
Buyer’s Agent
(Non-Agent) Facilitator
Designated Seller’s and Buyer’s Agent
Dual Agent

Confused? You are not alone – in fact, unfortunately, many real estate agents do not handle this disclosure process correctly. Like most real estate companies these days, Acton Real Estate represents both Buyers and Sellers. This full service model is called Designated Agency where the ‘Old Car” relationship is established at the start between the client, whether Buyer or Seller and the Agent.

It can get complicated when the Buyer Agent and the Seller Agent involved in a transaction both work for the same real estate company. So, your best advice, as always, is to work with a Resident Expertsm who knows the law and has your back.