Current through Register Vol. 47, No. 13, December 25, 2024
(1) A
brokerage which has a company policy that permits disclosed dual agency for
in-house transactions provides a disclosed dual agency consent agreement to the
client or prospective client prior to engaging in any activities of a dual
agent. If any seller, landlord, buyer, or tenant rejects dual agency, or
refuses to sign consent to dual agency, the licensee cannot act as a dual
agent. The dual agency consent agreement complies with Iowa law and commission
rules including, but not limited to, the criteria to inform the prospective
clients that they are not obligated to consent to dual agency representation as
provided by subrule 12.5(2).
a. A licensee
may act as a dual agent only with the informed consent of all parties to the
transaction. The informed consent is evidenced by a written agreement pursuant
to Iowa law and commission rules.
b. A dual agent is an agent for both the
seller and buyer or the landlord and tenant and has the duties and obligations
needed for a single agent representing a seller or landlord and for a single
agent representing a buyer or tenant, unless otherwise provided for in this
rule.
c. A dual agent discloses to
the client all material adverse facts concerning the property that are actually
known by the licensee, pursuant to Iowa Code section
543B.56.
d. A dual agent cannot disclose to one client
confidential information about the other client and preserves a seller's or a
landlord's, or a buyer's or a tenant's, confidential information as defined in
rule 193E-2.1 (543B), unless
disclosure is mandated by law, or failure to disclose such information would
constitute fraud or dishonest dealing, or disclosure is authorized by express
instruction. A dual agent does not terminate the dual agency relationship by
making the disclosures mandatory or permitted by the dual agency consent
agreement. Confidential information includes the same information as
193E-subrule 12.3(1) or 12.4(1).
e.
In any transaction, a licensee may withdraw from representing a client who has
not consented to a disclosed dual agency at any time prior to the existence of
the dual agency, which is prior to discussing any seller's or landlord's
property with a potential buyer or tenant and prior to discussing any potential
buyer or tenant with a seller or landlord, when both the seller or landlord and
the buyer or tenant are represented by and are clients of the licensee.
(1) All withdrawals are made in writing and
acknowledged by the separate signatures of the clients.
(2) Such withdrawal does not prejudice the
ability of the licensee to continue to represent the other client in the
transaction or limit the licensee from representing the client in other
transactions not involving a dual agency.
(2) A dual agency consent agreement:
a. Fairly and accurately describes the type
of representation the licensee will provide each client;
b. Contains a statement of the licensee's
duties under Iowa Code section
543B.56(1);
c. Contains a statement of the licensee's
duties under Iowa Code section
543B.56(2);
d. Informs the clients that representing more
than one party to a transaction may present a conflict of interest;
e. Informs the clients that they are not
obligated to consent to dual agency;
f. Provides additional information that the
licensee determines is necessary to clarify the licensee's relationship with
each client, including any changes from prior types of
representation;
g. Describes the
confidential information a dual agent will not disclose to one client about the
other client; and
h. Includes a
statement that the clients understand the licensee's duties and consent to the
licensee's providing brokerage services to more than one client.
(3) No particular disclosure
language is needed. The commission recommends use of the following sample
language to satisfy the mandatory disclosure regarding conflict of interest:
Representing more than one party to a transaction can create a
conflict of interest since both clients may rely upon the broker's advice and
the clients' respective interests may be adverse to each other. Broker will
endeavor to be impartial between seller and buyer and will not represent the
interest of either the seller or buyer to the exclusion or detriment of the
other.
(4) Potential dual
agency agreement. A brokerage which has a company policy that permits disclosed
dual agency for in-house transactions and that elects to use a potential dual
agency agreement provides the agreement to the client or prospective client
prior to engaging in any activities of a dual agent. Such consent agreement
complies with Iowa law and commission rules.
a. The potential dual agency agreement should
be provided to the seller or landlord prior to entering into a listing
agreement or a contract for seller or landlord brokerage services.
b. The potential dual agency agreement should
be provided to the buyer or tenant prior to entering into a buyer or tenant
agency agreement or a contract for buyer or tenant brokerage
services.
c. If the parties to a
proposed transaction or contract have agreed in writing to potential dual
agency, a dual agency consent disclosure is presented to the buyer or tenant
prior to the buyer's or tenant's signing an offer to purchase or a rental or
lease agreement. The buyer or tenant may accept or reject dual agency at this
point in the transaction.
d. If the
parties to a proposed transaction or contract have agreed in writing to
potential dual agency, a dual agency consent disclosure is presented to the
seller or landlord prior to the seller's or landlord's signing or accepting an
offer to purchase or a rental or lease agreement. The seller or landlord may
accept or reject dual agency at this point in the transaction.
e. If the parties to a proposed transaction
or contract have agreed in writing to potential dual agency, the obligated
subsequent dual agency consent disclosure is property-specific and complies
with Iowa law and commission rules.
