TENNESSEE AGENCY LAW REQUIREMENTS FOR AGENTS WORKING AS BUYER AGENTS

IF IT IS YOUR INTENTION TO WORK WITH A BUYER AS A BUYER’S AGENT IN A REAL ESTATE TRANSACTION:

You will be representing the BUYER as a CLIENT of your Real Estate Company. The Company, you’re Your Broker and you will be the BUYER’S AGENT.

After telling the BUYER about your Company, yourself and the services you provide, according to TCA 62-13-405, you must verbally disclose to the BUYER your status in the transaction before any real estate services are provided.

"Mr. Buyer, I wish to represent you as a BUYER’S AGENT. " As your AGENT, there are two special duties I will owe only to you under Tennessee Law (TCA 62-13-404):

OBEDIENCE - To obey all of your lawful instructions within the scope of our agency agreement.

LOYALTY - To be loyal to your interests and place your interests above all others involved in any transactions or activities except where such loyalty duty to you would violate my required duties to a customer.

"Mr. Buyer, as your AGENT, I will owe to you and everyone involved with us in any transactions or activities the following duties under Tennessee Law" (TCA 62-13-403):

I will use professional skill and care in providing services.

I must disclose to everyone any adverse facts, conditions or occurrences that have a negative impact on the value of your property, anything that reduces the structural integrity of your property or anything that presents a significant health risk to anyone who would occupy your property.

I will maintain the confidentiality of all information you give me other than anything that I must disclose under the Law.

I will provide services to you and to everyone with honesty and good faith.

I will provide timely and accurate information by request on market conditions related to a transaction.

My Company and I will account for any and all earnest money deposits and other property received from you or anyone else involved in a transaction.

I will not engage in self-dealing. I will not have any conflicts of interest. I will not represent a family member or other entity in which I have an interest without prior disclosure to you. If I recommend to you the use of another business in which I have an interest or from whom I may receive a referral fee, I will give you proper disclosure.

"Mr. Buyer, I am required by Law (TCA 62-13-405) to have you sign a DISCLOSURE FORM stating that I have given you all of this information before I can execute a Buyer Agency Contract with you. Please sign my Company’s Disclosure Form."

[ NOTICE - THERE IS NO STANDARD OR OFFICIAL FORM REQUIRED BY TENNESSEE LAW, THE LAW REQUIRES ONLY THAT YOU HAVE A WRITTEN DISCLOSURE. USE WHATEVER FORM YOUR BROKER REQUIRES. USING A FORM WHICH LISTS THE REQUIRED DUTIES OWED TO THE CLIENT AND ALL PARTIES WOULD GIVE THE AGENT ADDITIONAL PROTECTION IN

COURT . ]

With your AGENCY DISCLOSURE FORM and a BUYER AGENCY CONTRACT (required by Tennessee Law TCA 62-13-102, #7 and TCA 62-13-401) in hand, DO WHAT YOU HAVE TOLD YOUR CLIENT

YOU WOULD DOFOR HIM AS HIS AGENT.

THE BUYER AGENCY CONTRACT

Tennessee Law (TCA 62-13-102. # 7 and TCA 62-13-401.) requires you to have a written Agency Agreement between you and the BUYER establishing the terms and conditions of your BUYER AGENCY Relationship.

Your BUYER AGENCY Agreement should address the following:

TYPE- Exclusive Right to Buy Agency, Exclusive Agency, Non-Exclusive Agency

PARTIES - Identify the buyer and agent.

PROPERTY DESCRIPTION - Identify the type of property the BUYER is looking for and the locational preference.

SEARCH TERMS – Will you just search properties listed in the MLS?

PRICE - The BUYER'S price range.

TERMS - A beginning and ending date and any other stipulations the BUYER and/or you wish to include.

DISCLOSURE - How you will handle any possible conflicts of interest - working with multiple buyer clients – buyer client’s property listing - personal or other agency relationships.

COMPENSATION - How you will be compensated in a variety of situations (Compensation available from the Transaction - Listing Agency, the Seller. Compensation from the BUYER in the event there will be none available from the Transaction.)

Many of the terms and conditions of a Seller Listing Agency Agreement should also be considered in a BUYER AGENCY AGREEMENT.

SERVICES - What is it you and your Firm will do for the BUYER.

INDEMNIFICATION - Your hold harmless clause.

NONDISCRIMINATION - You both agree to obey the Fair Housing Laws.

ATTORNEY FEES - In case of litigation.

WHO SHOULD BE A BUYER'S AGENT?

Based on Court Decisions, Real Estate Agents who work with the following MUST be a BUYER'S AGENT:

AN AGENT BUYING FOR YOUR OWN ACCOUNT.

A BUYER WHO REQUIRES ANONYMITY.

A BUYER WHO REQUIRES REPRESENTATION.

A RELATIVE OF AGENT.

A CLOSE PERSONAL FRIEND OF AGENT.

A BUSINESS ASSOCIATE OR PARTNER OF AGENT.

A FORMER CLIENT.

Based on recent Court Decisions, Real Estate Agents who work with the following SHOULD be a BUYER'S AGENT:

A FIRST TIME HOME BUYER.

A BUYER REFERRED TO YOU.

A FORMER CUSTOMER.

OUT OF TOWN BUYER

INFORMATION YOU MUST DISCLOSE TO YOUR BUYER CLIENT AND ALL OTHER PARTIES IN A TRANSACTION:

Other Agency relationships ("I currently represent other BUYER CLIENTS, SELLER CLIENTS"; those real estate companies and agents you do not cooperate with.)

Company Polices, Company Policy and Procedures for changing Agency Relationships. How you will handle IN-HOUSE Transactions (DESIGNATED AGENCY, DUAL AGENCY, defaulting to FACILITATOR)

Sources of financing and Sources of compensation.

INFORMATION YOU MUST DISCLOSE TO YOUR BUYER CLIENT:

All information you can obtain about the Seller.

The willingness of the Seller to accept a lower price.

Any facts relating to the Seller's need to sell.

The Length of time the Seller's property has been on the market. (You should provide your BUYER CLIENT with a CMA.)

You cannot disclose any information that might weaken your BUYER CLIENT'S ability to obtain the most favorable terms in a transaction.

WORKING WITH OTHER REAL ESTATE LICENSEES AS A BUYER'S AGENT:

Under Tennessee Law (TCA 62-13-405), upon initial contact with any other Licensee representing a Seller involved in a transaction with you, you must disclose your BUYER AGENT status. This is a VERBAL Disclosure, the Law does not required it to be in writing. Licensees representing Sellers must verbally disclose to you their agency or status at initial contact. If at anytime, any Licensee's status changes during involvement in a transaction with you, that Licensee must immediately tell you of the change. Likewise, if at anytime, you change your status from a BUYER'S AGENT during involvement in a transaction with another Licensee, you must immediately tell them of the change. Written Disclosure of your change is only required between you and your CLIENT. Written Disclosure of any Licensee working with you in a transaction is only required between that Licensee and the person with whom they are working (seller).

Under the Law, you are only responsible for disclosing YOUR OWN agency relationship in a transaction, not the status of any other Licensee in the transaction.

THERE IS NO REQUIREMENT NOR PROVISION IN THE LAW FOR Licensees or Real Estate Companies to pass back and forth at the time of negotiating an Offer to Purchase, a Disclosure Form to be signed by all Licensees and parties involved.

While some Licensees and Companies may DESIRE a written disclosure from everyone involved in a transaction, this DESIRE is not a requirement and cannot impede the negotiation or completion of a transaction.

THERE IS A REQUIREMENT IN THE REALTORS® CODE OF ETHICS FOR “REALTORS®, acting as agents of, or in another relationship with, buyers or tenants, shall disclose that relationship to the seller/landlord's agent or broker at first contact and shall provide written confirmation of that disclosure to the seller/landlord's agent or broker not later than execution of a purchase agreement or lease.” ( Article 16 - Standard of Practice 16-10 )

WORKING AS A BUYER'S AGENT WITH SELLERS NOT REPRESENTED BY ANOTHER AGENT:

When you approach an SELLER NOT REPRESENTED BY ANOTHER AGENT (FSBO) concerning a property which your BUYER CLIENT has expressed an interest:

Since the Seller is not represented by another Licensee, you must disclose to that Seller at first contact your status as the BUYER'S AGENT ( TCA 62-13-405 ). You would inform the Seller about Agency and of the seven duties that Tennessee Law requires you to give to him. If the Seller will sign a Disclosure Form at first contact indicating that he understands that you represent the BUYER, have him do so. If he refuses to sign a Disclosure Form at first contact, inform him that the Law (TCA 62-13-405) requires that you have a Written Disclosure Form signed by him prior to presenting him an Offer to Purchase from your BUYER CLIENT. If the Seller is represented by another Licensee, then no written agency disclosure is required of you.

SHOULD YOU CHANGE FROM A BUYER'S AGENT TO A FACILITATOR/

TRANSACTION BROKER WHEN WORKING WITH A SELLER WHO IS NOT REPRESENTED BY ANOTHER AGENT?

As a BUYER'S AGENT you have promised to be LOYAL and OBEY your BUYER CLIENT, in addition to the other seven duties required by LAW. Why would you now remove your CLIENT'S two most valuable duties? Put yourself in the BUYER'S position - you obligated yourself to nine specific Agency Duties and to deliver some specific services as HIS AGENT. Now, as his advocate and representative, you are asking if he will allow you to abandon him.

If you work with an unrepresented Seller as a BUYER'S AGENT you would owe to him the same seven duties a FACILITATOR/TRANSACTION BROKER would owe to him. You may work with that Seller who is not represented by another agent as your BUYER'S AGENT with a written disclosure stating your status as a BUYER'S AGENT and the seven duties you would owe to that Seller.

Sometimes BUYER'S AGENTS are concerned about how they might receive compensation from a transaction when there is no listing contract with a Seller. Sometimes they make the mistake of trying to persuade the Seller into signing a "one time showing" listing contract. This would make you a DUAL AGENT - do you have your BUYER CLIENT'S authorization to do this? The most common way for BUYER AGENTS to receive compensation in a transaction where there is no listing contract with a Seller is to have your CLIENT make your compensation a condition of their offer to purchase. "Mr. Seller I will buy your property conditioned upon (your name), my BUYER'S AGENT receiving (the stated dollar amount) from the proceeds of this transaction at the closing."

As stated earlier, you must address how you will be compensated in different situations in your BUYER AGENCY CONTRACT with your BUYER CLIENT.

The only time you would have to change your status from a BUYER'S AGENT to a FACILITATOR/

TRANSACTION BROKER status would be when your BUYER CLIENT becomes interested in a property you have listed as a SELLER'S AGENT. Having already discussed your Company Policy and Procedures for "In-House" transactions and changing agency relationships with both your BUYER CLIENT and your SELLER CLIENT prior to obtaining a Buyer Agency and a Seller Agency Contract with them, you would now go back to both CLIENTS for their consent to allow you to change your status. If you can convince them, then you may change your status. Your Company Policy and Procedures will dictate how you do this and which agency relationship you may default to - FACILITATOR/

TRANSACTION BROKER or to DUAL AGENCY.

If it is your intention to REPRESENT both your BUYER CLIENT and your SELLER CLIENT in the same transaction, you must REPRESENT them as a DISCLOSED DUAL AGENT. You cannot REPRESENT them as a BUYER'S AGENT and as a SELLER'S AGENT.

You cannot work as a BUYER’S AGENT for your BUYER CLIENT and as a FACILITATOR/TRANSACTION BROKER for the SELLER in the same transaction.

YOU CAN WEAR ONLY ONE "AGENCY HAT" AT A TIME IN THE SAME TRANSACTION.